CQ WEEKLY – IN FOCUS
June 4, 2011 – 8:33 a.m.
A Washington Power Breaker
By Seth Stern, CQ Staff
Over three decades, law professor Randy E. Barnett’s libertarian scholarship on the Constitution’s original meaning and the proper balance between federal and state power brought him respect within academia but little notice beyond.
That began to change in 2009, as the Georgetown University scholar made the case that Congress exceeded its power to regulate interstate commerce by including a requirement in the health care overhaul that everyone have insurance. Most constitutional scholars initially ridiculed Barnett’s argument against the individual mandate — that Congress cannot regulate or punish the “inactivity” of not buying something.
Few mock it anymore, now that two courts have adopted the same reasoning in ruling against the individual mandate’s constitutionality. The U.S. Court of Appeals for the 11th Circuit will hear an appeal to one of those rulings this week in Atlanta.
In less than two years, Barnett, 59, has accomplished what few law professors ever manage to do: make an arcane constitutional argument so compelling and clear that it becomes part of the national conversation.
But what makes Barnett unique is how his influence has extended beyond the elite circle of litigators fighting the health care law and into the grass roots. He has helped members of the tea party movement and supporters on Capitol Hill formulate a proposed constitutional amendment that would authorize the repeal of laws enacted by Congress to which two-thirds of the states object. While its chances of being adopted are slight, that effort, and his work against the health care law, has made Barnett an intellectual favorite of House Republicans.
Still, Barnett feels no compunction about taking the GOP caucus to task when he believes its members have overstepped the proper bounds of federal power. In a recent newspaper opinion piece, Barnett accused House Republicans of “fair-weather federalism” for supporting a bill that would limit damages in medical malpractice lawsuits.
Jack Balkin, a Yale Law School professor who doesn’t agree with Barnett’s legal arguments, says his efforts have to be seen as part of a broader push by conservatives and libertarians to change the way the public thinks about federal power.
“They want the public and the courts to rethink the assumptions of the activist state that came with the New Deal,” Balkin wrote last year on his blog, “Balkinization.” “Randy and his allies are trying to change people’s minds through op-eds, speeches, protests and litigation. They are trying to move things from ‘off the wall’ to ‘on the wall.’”
Law School Letdown
The unifying theme in all these recent efforts, says Barnett, is his long-held belief in the need to rein in federal power.
“The repeal amendment is attempting to do that structurally by placing a check in the hands of state legislatures. The lawsuit against the individual mandate is trying to do that judicially by enforcing the enumerated powers, and my op-ed is trying to do it legislatively by urging Congress to adopt limits on its own power,” Barnett says.
Barnett traces his libertarianism back to his experience growing up in Calumet City, Ill., a working-class town outside Chicago where he says he learned “to vocally buck the majority based on what I thought was right.”
A Washington Power Breaker
Barnett says he was inspired to become a lawyer at the age of 10 while watching the pioneering CBS courtroom drama “The Defenders” in the early 1960s.
He supported Barry Goldwater’s presidential campaign in a school debate and read the National Review, but it wasn’t until he went to college at Northwestern that he discovered libertarianism, a label he says applied equally well to his father. “We just didn’t know it was an option,” Barnett says.
The way Barnett has branched out from academia into litigation and advocacy has drawn comparisons to the liberal professor whose class he says initially turned him off to constitutional law when he was a student at Harvard Law School: Laurence Tribe.
In his 2005 book “Restoring the Lost Constitution,” Barnett described becoming “disillusioned” as a student in Tribe’s constitutional law course as he read “one constitutional clause after another; passages that sounded great to me were drained by the court of their obviously power-constraining meanings.”
So when he left his first legal job as a local prosecutor in Cook County, Ill., for academia in 1981, he opted to teach contract law, because it was a subject “where courts seemed to take both written law and writings in general more seriously.”
A 1986 invitation to address the Federalist Society, then a relatively new networking group for conservative law students and attorneys, prompted Barnett to learn more about the Ninth Amendment, an often overlooked constitutional provision that says rights not enumerated in the document are “retained by the people.”
What Did They Mean?
His interest in the Ninth Amendment led Barnett to think about what exactly the Founding Fathers had intended when they wrote the Constitution. Rather than seeking to determine their original intent, Barnett came to embrace a different variation of originalism in which the central question is what the words included in the Constitution were commonly understood to mean at the time it was adopted.
“Whether you’re a conservative or a libertarian, Professor Barnett has probably been the most influential contemporary thinker in legal theory I can think of,” says Nick Dranias, director of the Center of the Institute for Constitutional Government at the Goldwater Institute in Phoenix. “The reason why his impact is so great is that he goes to the original sources and exhaustively proves that his case is founded on the original meaning of the documents; it’s not just an ideological sales job.”
Barnett would expand his focus to other constitutional provisions such as the Necessary and Proper and Commerce Clauses, the meaning of which both seemed well settled in the 1980s but became the subject of a renewed debate over federalism in the 1990s.
That was about the time Chief Justice William H. Rehnquist seemed intent on rolling back the broad license for federal regulation adopted by the Supreme Court in its Commerce Clause decisions since the New Deal. In a pair of decisions in 1995 and 2000, the Rehnquist court rejected legislation enacted by Congress creating gun-free zones around schools and a provision of the Violence Against Women Act as exceeding Congress’ authority under the Commerce Clause.
This federalism revolution stalled five years later in a case Barnett argued before the Supreme Court, challenging the federal government’s power to prosecute a grower of medical marijuana in California under the Controlled Substances Act.
Barnett argued that it was a constitutional overreach to treat homegrown cultivation of marijuana, for the sole purpose of giving it to a single patient, as a form of interstate commerce. It was, he said, too “detached” from any market to be subject to the Commerce Clause.
A Washington Power Breaker
Writing for the court, Justice
Despite that setback, Barnett returned to the Commerce Clause for support in 2009 as he set out to argue that the proposed health care overhaul’s individual mandate was an unconstitutional regulation of inactivity, rather than the economic activity he says is a prerequisite.
“If Congress can mandate this, then it can mandate anything,” read a Heritage Foundation paper he co-wrote, published in December 2009 during the House debate over the proposed law. By that reasoning, “Congress could require every American to buy a new Chevy Impala every year, or pay a ‘tax’ equivalent to its Blue Book value, because such purchases would stimulate commerce and help repay government loans.”
Most constitutional scholars dismissed such arguments as far-fetched, but Barnett’s reasoning was soon adopted by many Republican lawmakers and other critics of the law, leading The New York Times to describe him as the “intellectual godfather” of the argument that the health care law is unconstitutional. That moniker is a bit of a stretch. Other lawyers such as David Rivkin and Lee Casey had made similar arguments on the opinion pages of The Wall Street Journal and The Washington Post before Barnett did.
But Barnett undeniably deserves credit as an early advocate for the legal theories later incorporated into the many court challenges filed as soon as the law was enacted in March 2010. He would file amicus briefs in several of those cases and was enlisted to help draft the brief filed in the 11th Circuit by the National Federation of Independent Business (NFIB) on behalf of two individual business owners challenging the law.
Barnett declined to say what parts of the NFIB brief he wrote, describing it as a “genuine team effort” with lawyers from the firm of Jones Day, including Michael Carvin, a leading Supreme Court litigator who will argue the case before the 11th Circuit. The argument in the NFIB brief that the health care law is a threat to “individual liberty” certainly echoes Barnett’s previous academic writing.
Barnett plans to sit in the audience as he did during the earlier circuit court arguments. His team will share argument time against the law with Paul Clement, who will represent the 26 states challenging the law.
Barnett has come to be most closely associated with the health care debate, but his engagement with the tea party movement came even earlier.
He had an answer readily at hand when Glenn Beck asked him on his Fox News Channel show in April 2009, “What redress do states have who are tired of getting kicked around by the federal government?”
Barnett suggested that the prospect of a constitutional convention to consider an amendment limiting federal power “will put the fear of God into the power elite in Washington.”
A week later, he laid out his proposed “Federalism Amendment” in a Wall Street Journal op-ed, one that generated more e-mail than all of his previous opinion pieces combined. Using that feedback, he subsequently drafted an expanded “Bill of Federalism,” composed of 10 amendments, ranging from term limits to abolishing the income tax and protecting nonenumerated rights.
After receiving additional feedback from tea party members and refining the proposals further, Barnett published the proposal on Forbes’ website in May 2009. Interest in the idea rose a year later after the passage of the health care overhaul, and in a series of conference calls with him, tea party activists focused their attention on his sixth proposed amendment: giving states the power to repeal any federal law or regulation.
A Washington Power Breaker
“The tea party folks aren’t the producers of constitutional ideas, they are the consumers of constitutional ideas. It is no more the responsibility of the general public to produce refined constitutional analysis than it is for them to produce iPads,” Barnett said. “It’s Steve Jobs’ job to produce iPads, and it’s up to folks like me to make arguments the public will accept as legitimate.”
The repeal amendment attracted support from state officials around the country, including Bill Howell, the Speaker of the Virginia House of Delegates, who co-wrote an opinion piece with Barnett formally rolling out the idea to the public in September 2010. Last month, a group of GOP lawmakers from both chambers, led by Rep.
“You can call him one of the intellectual fathers or the intellectual father of the concept,” said Bishop, who spoke with Barnett as he drafted the text of the amendment resolution he introduced last month. “The discussion with him was very helpful in the way I looked at the amendment and provided good insight into the rationale for why it was drafted as it was.”
Critics such as Sanford Levinson, a University of Texas law professor, have argued that such an amendment would increase the power wielded by smaller states, which could repeal laws passed by lawmakers representing a majority of the country. Ilya Somin, a George Mason University law professor, predicts that such an amendment would bring only a “fairly small improvement.”
“If something was so unpopular that two-thirds of the state legislatures voted to get rid of it, there’s a good chance Congress would not enact it in the first place or that Congress would want to get rid of it itself,” Somin says.
Nevertheless, Barnett says, it would still prove valuable in “the extreme and highly unusual circumstances when Congress acts on a bare partisan majority over the apparent preferences of the general public and state governments” — as was the case, he says, with the health care overhaul.
Even as his work has won praise from House Republicans, Barnett has proven willing to criticize the GOP caucus if it reneges on its own promises regarding federalism.
In an op-ed published in the Washington Examiner last month, Barnett argued that Republican-sponsored legislation that would alter state medical malpractice rules infringes on tort law, an area of law he says the Constitution reserved to the states to regulate under their “police powers.”
Barnett also said Republicans had violated the language of their 2010 “Pledge to America” to require every bill to cite specific language in the Constitution authorizing such action. Instead of any provision of the Constitution, Barnett said, the malpractice bill’s sponsors cited Supreme Court case law deferring to Congress.
The problem, Barnett argues, is that ever since the New Deal, the Supreme Court has deferred to Congress to assess its powers, and the result has been that neither branch makes sure a bill is within Congress’ enumerated powers.
“Constitutional law professors have long cynically ridiculed a ‘fair-weather federalism’ that is abandoned whenever it is inconvenient to someone’s policy preferences,” Barnett wrote. “If House Republicans ignore their ‘Pledge to America’ to assess the Constitution themselves and invade the powers ‘reserved to the states’ as affirmed by the 10th Amendment, they will prove my colleagues right.”
FOR FURTHER READING:
The proposed constitutional amendment legislation is