Totenberg on Barnett on ACA and Precedent

June 11th, 2012

Now comes the Obama health care overhaul, known as the ACA, the Affordable Care Act, a law under full assault by the modern conservative movement. Some, like Georgetown Law Center professor Randy Barnett, the architect of the challenge, say openly that they believe many of the New Deal cases were wrongly decided.

“They are well settled precedents and are not likely to be revisited in my lifetime,” Barnett says. “But I do think that, according to the original meaning of the Constitution, they were wrongly decided.”

Barnett is similarly skeptical of some conservatives’ insistence that judges defer to popularly-elected legislatures. “I don’t think the court should simply defer to what Congress wants, especially when the issue is the scope of Congress’ own power,” Barnett says.

Barnett argues that the health care law can be struck down without undoing 75 years of judicial precedent. “Nothing about existing Supreme Court doctrine needs to change for us to prevail in this case,” he insists.

But his critics, including George Washington University law professor Jeff Rosen, contend that Barnett’s claim is disingenuous, and that the real goal here is to achieve what has not been achievable even by conservative Republican presidents and Congresses: rolling back major economic regulation.

“Let’s not pretend that this is just a modest case of applying existing precedents,” Rosen says. “The question is: Are you going to reverse decades of judicial deference in economic matters?”

Nina is pretty fair here.