How Randy Barnett joined the constitutional challenge to Obamacare

September 10th, 2013

Randy Barnett had many critical roles in the constitutional challenge to Obamacare (Disclosure: Barnett wrote the foreword for my book). In one respect, he was a leading constitutional theorists who helped develop the arguments that five Justices ultimately accepted . In another respect, he was a constitutional evangelist, dedicating nearly three years of his life to talking about the mandate, writing about the legal arguments against it, and spreading the constitutional movement against Obamacare. The New York Times accurately summed up Randy’s remarkable contributions to this case. But how did Randy get started?

In Part II of Unprecedented, which is now also available on Kindle, I discuss the “Mayflower Compact,” where the official challenge to Obamacare unofficially kicked off. Each November, the Federalist Society hosts its biggest event of the year, the National Lawyers Convention, at the Mayflower Hotel.  The convention draws prominent academics, politicians, and judges from across the ideological spectrum to discuss and debate the key legal issues of the day. As is often the case at such conventions, some panels are more interesting than others. During lulls, attendants frequently recess to the grand hallway in the Mayflower to catch up with old friends, argue about the most recent Supreme Court case, or brainstorm and strategize. November 12, 2009, was just such a day. At 10:15 am, a panel began on “Bailouts and Government as Insurer of Last Resort.” Though certainly an interesting topic, a number of already-fatigued Federalists made their way out into the cavernous hallway. I joined them.

Todd Gaziano, formerly the director of the Center for Legal and Judicial Studies at the Heritage Foundation—the same Heritage Foundation that had first advanced the individual mandate two decades earlier—was talking about the pending health care bill along with Nelson Lund, my former professor at George Mason University School of Law; Andrew Grossman, a former classmate; and a few others. At this point the law still had not been released in its 2,700 page entirety in the Senate, but conservatives and libertarians were already getting worried. With the bill coming up for a vote in the Senate in a month, Gaziano said that he wanted to write a report for Congress that would give constitutional arguments as to why the law was invalid.

A few moments later, Georgetown University Law Center professor Randy Barnett joined the conversation. In hindsight, Barnett’s entry into the conversation was providential. Gaziano later told me that he was “looking for someone with real knowledge in the area,” someone who had “gravitas,” to help make the case against Obamacare. Barnett was perhaps the ideal candidate. This conversation, though it started out innocently enough, would change the fate of the constitutional challenge to Obamacare.

Gaziano asked Barnett, “Hey, Randy, do you have any thoughts about the constitutionality of the health care law?”

Randy replied, “You know, I really haven’t give it much thought.”

At the time, Barnett had written a few blog posts on the bill (such as this early Politico post and a series of back-and-forths with Orin), but otherwise had given it scant attention. He was focused primarily on McDonald v. Chicago (everyone remembers Privileges or Immunities?). Before that date, there had been numerous blog posts here at Volokh about the law by Dave Kopel, Ilya Somin, and Jon Adler, a report by Professor Mark Hall, a white paper  by Peter Urbanowicz and Dennis Smith for the Federalist Society, as well as op-eds by David Rivkin and Lee Casey.

Gaziano told Barnett that he had a “guy” who could help them formulate a paper, though he stressed that they had to act quickly. “Whatever we do,” he said, “we need to do it right away.” The law would be voted on in the Senate in roughly a month. Barnett seemed skeptical and said that he was very busy at the time. Following his defeat in Gonzales v. Raich, Barnett was “very pessimistic” about the prospects of a challenge to the ACA, but he was open to persuasion.

Gaziano, tenacious as ever, kept at it and asked if Barnett wanted to write a report and “do something about the law.” Barnett agreed, but said, “You will have to get someone to do the first draft.” Gaziano coaxed Barnett further. “Stop by my office this week. We can talk more about this case. And I have a young associate who can help write this.” Intrigued, Barnett flashed his familiar smirk and agreed.

A few weeks after that meeting, Barnett, Gaziano, and the “young associate,” washington lawyer Nathaniel Stewart, released the Unprecedented White Paper at a Heritage event. (Stewart should be commended for his important role in writing the first draft of the report, and authoring a case note while a law student at Case Western about the regulation of “classes of activities” following Raich). At a Heritage event, Barnett and Eugene Volokh debated, and the other Orin, Senator Orin Hatch gave remarks on the constitutionality of Obamacare.

Of even greater importance than the public forum, perhaps, after the event was finished a few dozen staffers from Capitol Hill were invited to a lunch where they would receive a private briefing. At that meeting, having heard that the staffers could not think of a constitutional argument against the ACA, Barnett was tasked with explaining the legal theory of the paper and fielding questions. It was stressed how important it was to get this report into the Congressional Record and to persuade senators who opposed the Act on policy grounds to also oppose it on constitutional grounds. The staffers were also told that this issue was going to the Supreme Court and that the justices would want to know whether the issue had been argued in Congress.

Later that day, Hatch entered the report into the congressional record. This may be the world’s quickest turnaround for a citation by a legal publication into the congressional record. During my talk at Columbia yesterday, Professor David Pozen, who graciously commented on my book, made an interesting point: for purposes of the rapid development of constitutional doctrine, it was not the law reviews–the bread and butter of academia–that counted but a white paper by think tanks. We can consider that later.

That Heritage report would go on to be cited numerous times in the Senate debates about Obamacare during the pivotal constitutional point of order, and laid the framework for the eventual constitutional challenges to the law.

After the Heritage event, it was off to the races, as this constitutional argument journeyed from “off the wall” to “on the wall.” I’ll talk more about this popular constitutionalist movement in another post.

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