Published: My First Year Battling Obamacare
Back in June, I wrote about a law review article I had just completed that detailed my first year or so of activities surrounding the Obamacare lawsuits. Well, now it’s officially published, in the Florida International University Law Review. Here’s the abstract:
This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.
Go here to download “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”
What Is Judicial Activism?
Nearly a year ago, I had an engaging debate at Berkeley Law School regarding “judicial activism.” Of course, as I clarified, the phrase is really just an epithet hurled by someone to describe a legal ruling with which he disagrees. The whole argument about whether a certain judge is “activist,” “restrained,” or anything else is irrelevant: fidelity to the Constitution should be the sole evaluative criterion—and point of debate—regardless of whether that means striking down a law or upholding it, deferring to the legislature or not.
As I said during this debate (which was against a young law professor named Fred Smith),
The purveyors of conventional punditry all miss the larger point. The role of the judiciary in terms of constitutional interpretation is to fully interpret and apply the Constitution, period. So, if that means upholding a law, fine. If that means striking it down, fine. Activism is doing something that is not supposed to be the judicial role or not being faithful to the Constitution, which is no small task in part because of the doctrinal mess the Supreme Court has made. Again, whether a particular statute stands or falls is of no moment. Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint or—as John Roberts put it at his confirmation hearing—modesty: just calling balls and strikes, just being in a kind of modest judicial role. Again, where you stand on those sorts of debates depends on where you sit.
I can quote this debate because a transcript has been published in the Federalist Society’s journal, Engage. The current volume has plenty of other interesting articles, including some authored by various Cato-affiliated or -friendly folks.
My First Year Battling Obamacare
Most people are by now familiar with the broad strokes of the lawsuits challenging Obamacare: more than 30 cases around the country allege, among other claims, that the federal government lacks the constitutional authority to require people to buy a product (the individual health insurance mandate)—and the only way to avoid the mandate is to become poor. After decisions going both ways in the district courts, we are now at the appellate stage in five of those suits, including Virginia’s and the Florida-led 26-state effort.
Those who follow developments in constitutional law are also familiar with the broad legal arguments being made: that the power to regulate interstate commerce, even when read in the context of the power to make laws that are necessary and proper to executing that specified commerce power, does not include the power to force someone to engage in economic activity—to create, in effect, the commerce being regulated. Not even during the height of the New Deal did the government require this, and there are no parallels in the Civil Rights Era or since. (And also that Congress can’t do this under the taxing power for various reasons that I won’t go into here; even those courts ruling for the government have rejected the taxing power assertion.)
Finally, those who follow Cato are probably aware that I’ve been spending a good part of my time since Obamacare’s enactment in March 2010 in this area: filing briefs, writing articles, debating around the country, appearing in the media. And I’m not alone; our entire Center for Constitutional Studies has been involved in various capacities. Indeed, Cato Chairman Bob Levy himself produced a very useful Primer for Nonlawyers about what is the clearly the central constitutional and public policy debate of our generation.
Well, if anyone cares to peek beyond the curtain of how Cato’s legal efforts against Obamacare have evolved, I have an article on that forthcoming in the Florida International University Law Review. Here’s the abstract:
This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.
Read the whole thing, titled “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”
Miranda Ain’t Broke
The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.
Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.
As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:
In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.
After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.
The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.
Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.
So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.
Break Out of Those February Blahs!
…by attending one of my public events this month. Here’s what I currently have scheduled (those sponsored by Federalist Society marked with an asterisk):
- Feb.7 at 4pm — Comparative Constitutionalism, Rule of Law, and Lessons from Iraq – NYU Law School*
- Feb.8 at 1pm – Panel on Judicial Activism (American Constitution Society conference on “Federal Courts, Inc.?”) – NYU Law School
- Feb.9 at 1pm – Debate on the Constitutionality of Obamacare – Brooklyn Law School*
- Feb.10 at 10:45am – Debate on the Constitutionality of Obamacare – AMA Advocacy Conference at the Grand Hyatt, Washington, DC
- Feb.15 at noon – Is Dodd-Frank Constitutional? – Cato Policy Forum
- Feb.16 at 12:15pm — Debate on the Constitutionality of Obamacare – University of Akron Law School*
- Feb.16 or 17 – TBD — possible event(s) at Case Western and/or Cleveland State Law Schools*
- Feb.20 at 10:45 — “Are There Any Limits on Federal Power?” — Students for Liberty International Conference, George Washington University Marvin Center, Washington, DC
- Feb.22 at noon — Debate on Constitutionality of Obamacare — University of Arkansas Law School*
- Feb.23 at 12:20 — TBD — Southern Methodist University, Dallas*
As always, if you attend any of these events, please come up and introduce yourself. You can also follow my travels and travelogues on Twitter at @ishapiro.
Upcoming Debates on Obamacare, Use of Foreign Law
Last year I hit about 35 states on various lecture/debate tours. To round that out — and further reduce the states I’ve never visited (though Alaska, Iowa, Nebraska, and the Dakotas will stubbornly remain untrodden by my feet) — this winter I have a schedule that’s eventful but not insane like my fall was. Here are the rest of my public events in January (all sponsored by the Federalist Society):
- Jan. 18 at noon — Debate on the Constitutionality of Obamacare — University of Colorado-Boulder Law School
- Jan.19 at noon — Debate on the Constitutionality of Obamacre — University of Wyoming Law School
- Jan.20 at 11am — Debate on the Constitutionality of Obamacare – BYU Law School
- Jan.24 at 12:15pm — Debate on the Use of Foreign Law in Constitutional Interpretation – University of Utah Law School
- Jan.26 at 5pm — Debate on the Constitutionality of Obamacare – Widener University Law School (Wilmington, DE campus)
As always, if you attend any of these events, please do come up and introduce yourself. You can also follow me on Twitter at @ishapiro.
More Supreme Court Review on the Road
In case any of you are regretting not having been able to attend any of my September-October speaking events, here’s my public schedule for November-December (not counting a spirited Obamacare debate against Columbia’s Gillian Metzger last night at the University of Maryland Law School in Baltimore) (events sponsored by the Federalist Society asterisked):
- Nov. 8 at noon — “Oh, That Rent-Seeking Mickey Mouse: Intellectual Property and Public Choice Theory” – Texas-Wesleyan (Fort Worth) Law School*
- Nov. 9 at noon — Debate, “The Arizona Immigration Law: Constitutional? Good Policy?” — St. Mary’s University (San Antonio) Law School*
- Nov. 10 at noon — Debate on the Use of Foreign Law in Constitutional Intepretation — Florida International University (Miami) Law School*
- Nov.11 at noon — “How I Got My Green Card or Why the Immigration System Is the Worst Part of the U.S. Government (and How to Reform It)” – St. Thomas University (Miami) Law School*
- Nov.12 at 9:45am — Panel as part of all-day law review symposium, “Cure, Botch or Opiate? Law, Politics, & the Constitutionality of The Patient Protection and Affordable Care Act” – Florida International University Law School
- Nov. 15 at noon — Constitutionality of Obamacare – University of Alabama Law School*
- Nov. 16 at 11:30am — Panel, “Obamacare: Is it Constitutional?” Cumberland University (Birmingham) Law School*
- Nov. 17 at noon – Debate on the Arizona Scholarship Tax Credit Case — Catholic University (Washington, DC) Law School
- Nov. 22 at noon — Debate, “The Health Care Reform Act: What It Means for the Market, the Constitution, and You,” University of Michigan Law School*
- Nov. 22 at 4pm — “The Sweet Mystery of Anthony Kennedy,” Detroit-Mercy Law School*
- Nov. 23 at noon — “The Chrysler Bailout: Subverting the Constitution, Bankruptcy Law, and Good Sense,” Thomas M. Cooley Law School (Auburn Hills, MI)*
- Dec. 1 at 10am — Panel, “Everything You Wanted to Know About Health Reform, But Were Afraid to Ask,” American Legislative Exchange Council’s 2010 States and Nation Policy Summit (Washington, DC).
- Dec. 4 at 8:30am — Debate, “Point\Counterpoint: Diagnosing the Constitutionality of Federal Health Care Reforms,” Council of State Governments National Conference, Providence.
As always, if you attend any of these events, please do come up and introduce yourself.
Slouching Towards a New Supreme Court Term
We’re now three weeks away from the new Supreme Court term – I know you’re as excited as I am — and after a summer that included big opinions from The Nine, more confirmation hearings, and front-page district court decisions (on ObamaCare, immigration, and gay marriage), we roll into a fall full of even more legal intrigue. Indeed, the first Monday of October that marks the first high court arguments of the new season is pretty much the first day of school for us Court-watchers. And what better way to go back to school than to attend Cato’s ninth annual Constitution Day symposium this coming Thursday?
But don’t think that Constitution Day marks my re-emergence into the public sphere after a long six weeks slaving away at the Cato Supreme Court Review. No, that moment, when I opened my office door, shook off the cobwebs, and went forward into our glorious future came last week, with panels on ObamaCare and immigration reform at the University of Virginia and Liberty University, respectively. Those two law schools did a wonderful job in organizing and publicizing their events. And here’s the rest of my schedule through the end of October, many of which continue my ObamaCare debate challenge (events sponsored by the Federalist Society are asterisked):
- Sept. 13 at 1pm at Boston University Law School – Preview of the New Supreme Court Term*
- Sept. 14 at noon at Harvard Law School – Debate on the Constitutionality of Obamacare against Prof. Mark Tushnet*
- Sept. 17 at noon at Rayburn House Office Building B-340 – Capitol Hill Briefing on the Supreme Court and Economic Liberty
- Sept. 20 at 5pm at Loyola University Law School (Chicago) – Panel on the Constitutionality of Obamacare*
- Sept. 21 at noon at Northwestern University Law School (Chicago) – Preview of the New Supreme Court Term*
- Sept. 22 at noon at University of Illinois at Urbana-Champaign – Debate on the Constitutionality of ObamaCare*
- Sept. 25 – George Mason law professor and Cato adjunct scholar Ilya Somin‘s wedding – Please do congratulate him!
- Sept. 28 at 12:30 – University of Kansas Law School – Debate on the Constitutionality of ObamaCare*
- Sept. 29 at lunch – Kansas City Federalist Society Lawyers Chapter – ObamaCare and Missouri’s Prop C*
- Sept. 30 at 8:30 – Missouri Bar Association Annual Meeting - Panel on the Supreme Court
- Sept. 30 at 1pm – University of Missouri Law School – The Constitutionality of Obamacare*
- Oct. 4 at 10am – U.S. Supreme Court – First Monday!
- Oct. 5 at 5pm – Widener University Law School (Delaware) – The Constitutionality of Obamacare*
- Oct. 9 at 7pm – Washington Capitals home opener against the New Jersey Devils (I’m a season-ticket holder)
- Oct. 12 at noon – Lewis & Clark University Law School (Portland, OR) – TBD*
- Oct. 12 in the evening – Portland Federalist Society Lawyers Chapter – TBD*
- Oct. 13 at noon – Willamette University Law School – TBD*
- Oct. 16 at 6pm – University of Toronto Schools Centennial Gala (Go Blues!)
- Oct. 19 at noon – University of Southern California Law School (L.A.) – Immigration*
- Oct. 20 at noon – Chapman University Law School – Immigration*
- Oct. 21 at noon – Orange County Federalist Society Lawyers Chapter – TBD*
- Oct. 22 all day – Chapman University Law School Nexus Journal of Law & Policy Symposium – “Citizens Divided on Citizens United: Campaign Finance Reform and the First Amendment”
- Oct. 26 at lunch – Stanford University Law School – TBD*
- Oct. 27 at noon – University of the Pacific Law School (Stockton, CA) – Debate on the Constitutionality of Obamacare*
- Oct. 28 at 12:45 – University of California at Berkeley Law School – Debate on Judicial Activism*
If you come out to any of these events, please do come up and introduce yourself.
More Supreme Court Review on the Road
As an update to an earlier post about my speaking schedule this fall, here are my remaining public events through Thanksgiving. All these events, other than the one on Nov. 3, are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public. As always, if you decide to attend one of the presentations after learning of it from this blog post, please feel free to drop me a line beforehand, and do introduce yourself after the event.
Event info after the jump.
What’s Wrong With The Title of This Event?
A May 1st Federalist Society lunch will feature William Kristol, Editor of the Weekly Standard speaking on “The Obama Administration and the War on Terror.” Hopefully, it will be a fair-minded inquiry into the utility of the “war” metaphor for combating and suppressing terrorism.
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