Video and Recap: Randy Barnett, Neil Katyal, & Paul Clement on Federalist Society Panel on Obamacare #FedSoc2012

November 17th, 2012

Randy’s talk starts at 11:45. My rough analysis is below the video. FedSoc’s coverage is here.

Here is my rough summary of the talks.


September 2005, WSJ asked if I’d write tribute to CJ Rehnquist, who had just passed away. The Op-Ed asks whether Roberts will continue focus on the New Federalism.

As the president now decides who next to nominate, he would uphold the Constitution by selecting a person with a firm and demonstrated commitment to the Rehnquist Court’s New Federalism legacy. Only such a choice would continue the movement to restore the “first principles” of constitutionally limited government that William Rehnquist affirmed so eloquently. One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate.

Eight years later. Good news, and bad news.

There are three versions of federalism. Failure to recognize three versions, shows why colleagues predicted no chance to prevail.

First, Pre-New Deal version.That the powers should be interpreted according to their original public meaning before the New Deal. We all know that this vision of federalism was supplanted by the New-Deal vision of federalism. The New-Deal vision of Federalism has been interpreted by progressives beyond what New Deal said, as repudiating that there are limited and enumerated powers in the Constitution. Rather Congress has plenary power to do anything to legislate anything that pertains to the national economy. Because most law profs hold this view, when Rehnquist court established New Federalism, came as shock. New Federalism established that there were limits, first principles, limits that would be enforced by the court.But question that arises, is that did it go back to pre-new deal federalism. When Raich was decided in 2005, liberals thought we were back to New-Deal understanding.

New Federalism of Rehnquist Court was new federalism, not reversion to pre-New Deal. New federalism represents “this far, and no farther.” Everything under New Deal settlement is constitutional, but if Congress wants to do something new that is “unprecedented” Congress bears heavy burden of justification to explain why justified, and why it doesn’t lead to conclusion that Congress has unlimited police power of national economy. That is the intellectual milieu in which we brought the health care challenge. Will Court hew to “This far and no farther line.” Or has it accepted that law prof interpretation of new deal that gives congress plenary power over national economy. Rehnquist legacy of new federalism still alive and pretty well. Gathered 5 votes for proposition that Congress’s commerce powers are unlimited. Courts are in a position to draw the line. Since individual mandate was “literally unprecedented.” Congress under burden to offer rationale to explain why this would not lead to a plenary police power.

No way law profs can argue about what meaning of commerce and N&P clause is as they did prior to bringing law suit.

Outcome of case was “somewhat disappointing, or really considerably disappointing. I still haven’t gotten over it yet.” The law was upheld, because not a 5th vote to hold line at commerce and N&P. 5 votes to identify line, not 5 votes to hold that line. 5th vote decided to rewrite text and eliminate requirement part, deal only with penatly, recharacterize penalty as a tax, and uphold provision as constitutional.

Close by asking why this happened. Make distinction between “judicial conservatism” and “constitutional conservativism.”

Judicial conservative has favor and advocated for many years–position that advocates position of judicial restraint. Judges should defer to popularly elected branches. There should be judicial restraint or deference.

Constitutional constraint conservative, has popular valence, is that entire Constitution is limit on all 3 branches, and judiciary to enforce those limits. Courts should not shirk from that duty. That is the philosophy of judicial engagement.

What did we learn? 5 conservative justices are not enough. 5 votes are not enough. If you only have 5 votes, if pressure is great enough, someone is going to break. We had to run the table in this case. Needed unanimous vote of 5 votes to enforce limit. 5 votes are not enough.

Another lesson for next few days, we ought to reconsider iron-clad commitment to judicial restraint. Isn’t that what we saw in this case. We saw 4 justices who were committed to upholding limits of Constitution. As interpreted through New Federalism philosophy of “this far and no farther.” One Justice not prepared to do this. One justice who looked to save statute and defer to popularly elected Congress and “popular Affordable Care Act.”

Going forward we need to think if that is really the judicial philosophy we want to adhere to in the future. Or do we want to pick justices who profess a belief in federalism, enumerated powers, and have “character and fortitude” to standup to withering public pressure in order to enforce those principles. We saw what it looks like when 4 justices do that. We lack the 5th vote to do that. In future, we have to be prudent in who we have to fill those vacancies. Otherwise, legacy of Rehnquist will expire. In some respects we have moved ball far forward from where it was on him demise.


To my colleague Barnett, Randy is also the person who is making law professors relevant to the real world. For Clement, “I have not heard a more spectacular argument” than 3 days of ACA.

Not here to gloat. You all should be happy.

There are two strands in Federalist Society: judicial conservatives, constitutional conservatives.

When I was in law school, FedSoc had won first principle, deeply influenced tradition of judicial restraint for unelected judges. When constitutional doubt, defer to political process. I thought that is what FedSoc adhered to. Now I see total breakdown in that philosophy.

When you read the Chief’s opinion, “it does not cohere all that well.” Roberts’s opinion begins with the fact that there is “lack of historical precedent.”


Paul came on around 1:05:20.

Provide a happier note, glass-half-full view of health care case.

The decision was an important vindication of federalism, to an extent.

It is important to remember that individual mandate was struck down as unconstitutional, but there were 5 votes to strike down the individual mandate. This is an important point. CJ decided commerce clause and n&P question, statute congress actually wrote was unconstitutional. Rewrote statute, saving construction. Ginsburg criticized him for analyzing commerce and N&P if going to uphold anyway under taxing power. CJ responded, I have to address commerce power and N&P because those are only powers that actually support a mandate to purchase insurance, as opposed to a tax on status of not being insured. Need to consider those to consider statute congress actually passed. So the mandate was in fact invalidated.

Randy alluded to fact that 5 votes were not enough. 14 votes were not enough. Challengers had to run the table not just on 5 justices, but to do so on each of 3 arguments to support statute. We got 14/15 possible votes. Needed 15th vote.

For first time, SCOTUS case that holds that there is a limit on extent to which congress can coerce states to accept money.

The fact that a law is unprecedented does not alone suggest that it is constitutionally dubious. If a law is unprecedented, and exercises power that is highly attract, and no congress has done it before, that dog that didn’t bark has some significance in interpreting that argument. Criticism of CJ, he recognizes that for commerce, but when he gets to taxing power, does not recognize that principle. Does not come into two categories of direct taxes–why? Because it is unprecedented, never dealt with that before.