Randy Barnett ’77
A decision by the U.S. Supreme Court on whether Congress has the power to mandate individuals to carry private insurance coverage isn’t expected until the end of June. But Libertarian legal theorist and Georgetown University Law Center Professor Randy Barnett ’77 is already claiming victory of sorts for his argument that the mandate is unconstitutional.
Barnett, who represented the National Federation of Independent Business in its challenge to the Patient Protection and Affordable Care Act and attended the oral arguments in March as an observer for that organization, joined HLS Dean Martha Minow April 12 to discuss the case in a program sponsored by the HLS Federalist Society.
Minow introduced Barnett as “the person who’s most responsible for bringing public attention to this issue and identifying the structure of a constitutional challenge.”
Barnett characterized his ongoing constitutional challenge to the individual mandate as a rather lonely one when he took it up two and a half years ago after lawyer David Rivkin raised the issue in a Wall Street Journal op-ed piece and launched an online legal-blog debate.
“There was another law professor on that blog who posted a very snarky ‘Nobody can be serious about a constitutional challenge here,’” Barnett said. “And I just sort of decided, Well, maybe I should say something.”
Since then, Barnett said, his argument has gained constant momentum, culminating in a historic examination of the issue by the Supreme Court in March. The justices gave attorneys more than six hours for oral arguments over three days—the most time they’ve allowed for oral arguments since their consideration of Miranda v. Arizona in 1966.
This time, the justices are reviewing U.S. Department of Health and Human Services v. Florida, and NFIB v. Sebelius, in which the U.S. Court of Appeals for the 11th Circuit ruled in January 2011 that the mandate falls outside the federal authority contemplated by the commerce clause in the Constitution.
One of the central issues examined during the Supreme Court hearings was whether the Anti-Injunction Act, which prohibits taxpayers from challenging a tax until it goes into effect, applies to the health-mandate requirement in the Affordable Care Act.
The argument that the Anti-Injunction Act does apply—and therefore renders the constitutional challenge moot—is widely held in legal academia, Barnett contended.
“It’s an argument that’s so beloved by professors, but there was not a single justice who was even interested in the tax-power argument in six hours of oral presentation,” he said. “If any justice liked the tax-power theory, you would have expected to hear from her or him during the discussion of the Anti-Injunction Act.”
“The justices were debating among themselves about why it didn’t apply. There was nobody saying it did apply.”
Barnett said he is cautiously optimistic about how the justices will rule. He said he had the sense from the justices at oral arguments that they may believe the Affordable Care Act goes too far.
“If it were actually accepted by the Court, they would basically be saying that Congress has unlimited power to do whatever they want as long as they limit these sanctions to a monetary fine collected by the IRS,” he said. “That would be a startling claim of power.”
“This is a claim of power by Congress that is literally unprecedented. Never before in history has Congress required individual citizens to do business with private companies as a means of exercising its commerce powers.”
He pointed out that just because something is unprecedented, that doesn’t mean it’s necessarily unconstitutional.
What it does do is render it a case of first impression, “which means that it’s highly unlikely that prior precedents have directly addressed the issue of whether this is OK or not. That’s exactly the reason why this has always been a close case on the merits, and not an easy case.”
Frank talk at Harvard College Class Day
U.S. Rep. Barney Frank ’77 was a keynote speaker at Harvard College’s Class Day exercises held at Tercentenary Theatre.
U.S. Rep. Barney Frank (A.B. ’62) ’77 shared the stage at Harvard College with actor, writer and comedian Andy Samberg to deliver the keynote address during the college’s Class Day celebration.
Frank, who has represented the Fourth Congressional District of Massachusetts since 1981, served as chairman of the House Committee on Financial Services from 2007 to 2011. He remains the committee’s ranking Democrat.
As part of his talk, Frank urged his listeners to join him in calling for the United States to end its billion dollars in regular assistance to Europe. He referenced Secretary of State George Marshall’s Harvard Commencement speech of 1947, during which he announced the Marshall Plan, the allied roadmap on how to rebuild Europe after the Second World War.
At that time, Frank said, Europe was “poor and hungry and defenseless, and facing a brutal Soviet Union.” The current situation is vastly different, and “65 years later, too little has changed in our policy,” he added. “America continues to commit tens of billions of dollars that we could otherwise use for very important purposes,” including education, environmental solutions and health research.