Pretending that no law professors question Obamacare

Back in 1989, National Public Radio reporter Nina Totenberg attempted to portray the individual rights view of the Second Amendment as a fringe position with no academic support. She claimed that the National Rifle Association had been unable to provide her with names of any professors who thought the Second Amendment was an individual right.

According to the NRA, Ms. Totenberg was lying, and the NRA had given her three names: Robert Cottrol of George Washington, Joseph Olson of Hamline, and Sanford Levinson of Texas. The latter, of course, was (and is) well-known as the co-author of a major constitutional law textbook, and had just published an article in the Yale Law Journal, titled “The Embarassing Second Amendment,” which stated that the arguments in favor of an individual right were very strong.

Indeed, the individual right arguments were so strong that when the Supreme Court finally got around to announcing a new Second Amendment decision, in District of Columbia v. Heller, all nine Justices readily agreed that the Second Amendment guarantees an individual right. There was a 5-4 split on the scope of the right, but all Justices recognized that the right belonged to inviduals, not to states or to some “collective.”

Earlier this week at the University of Washington Law School, a “debate” was held on the constitutionality of Obamacare. All four of the debaters said that the new law is unquestionably constitutional. According to moderator Hugh Spitzer, the reason that the “debate” featured only one side was that “we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional…But there are relatively few of them, and they are in great demand.” The Center for American Progress touts this story as proof of the constitutionality of Obamacare, and the comments on the blog post are a self-congratulatory frenzy about the stupidity of anyone who doubts Obamacare.

Well, all I can say is that if I had some legal problem that required modestly diligent research, I sure wouldn’t hire any of those Washington panel organizers.

My Cato Institute colleague Ilya Shapiro has just posted an offer to debate Obamacare anywhere, anytime. Besides working at Cato (where he edits the Cato Supreme Court Review, and helps manage Cato’s extensive constitutional litigation program),  he is also an adjunct professor of law at George Washington University.

Like Sanford Levinson, Randy Barnett, of Georgetown Law School, is also the author of a constitutional law textbook; Barnett has commented extensively on the unconstitutionality of Obamacare. Cato’s Roger Pilon has written many legal scholarly articles, and is an adjunct at Georgetown, although he teaches Government, so perhaps he does not count. Another law professor skeptic is Richard Epstein, of the University of Chicago. Lee A. Casey, who is co-counsel for the 13-Attorneys-General lawsuit, is currently in private practice, but has been an adjunct law professor at George Mason.

Michael McConnell (Stanford) wrote an op-ed in the Wall Street Journal challenging the constituitonality of the mandate.

Writing in USA Today, Jonathan Turley (George Washington) suggested that Obamacare is a flagrant violation of federalism and the Tenth Amendment.

Hypothesizing that Barnett, McConnell, and Epstein were asked to participate in the UW and declined because of schedule conflicts, and that Casey doesn’t count because he is not currently teaching, Shapiro avers that he was never contacted.

As VC readers know, I also think that Obamacare is unconstitutional. The Wall Street Journal excerpted some of my blog post on March 25. I teach Advanced Constitutional Law at Denver University Sturm College of Law. My most extensive article on the interstate commerce power is Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban, 30 Connecticut Law Review 59 (1997). In that article, Glenn Reynolds (Law Professor, U. of Tenn.) and I argue that the post-Lopez interstate commerce power does not give Congress the power to regulate the particular technique that is used in abortions. [The plaintiffs in Gonzales v. Carhart did not raise this issue, but the concurrence by Justices Thomas and Scalia indicated that they might have voted against the federal ban, if the plaintiffs had raised the commerce clause.]  A fortiori, at least as Glenn and I see things, the interstate commerce power does not include the power to compel every American in buy a congressionally-designed product.

CBS News noticed the prediction by Ilya Somin (George Mason Law, VC) that the Court would probably uphold the mandate, but “such a law would be unconstitutional under the correct interpretation of the Commerce Clause — or any interpretation that takes the constitutional text seriously.” That view would have added some intellectual diversity to a debate.

Another law professor who has raised constitutional questions about Obamcare is Rob Natelson (U. Montana; also my colleague as a Senior Fellow at the Independence Institute). However, Rob is pretty busy getting ready to retire and to move to Colorado, so perhaps he was not available.

With a few minutes of searching on the web, I also found 

“It’s definitely going way beyond anything Congress has ever attempted before,” said Kris Kobach, a law professor at the University of Missouri-Kansas City and candidate for Kansas secretary of state. “There’s a very solid argument here.”


Bruce La Pierre, a constitutional law professor at Washington University [St. Louis, not UW], noted that the court majority in the Raich medical marijuana case was a delicate one and left “little reason to be sanguine that health-care legislation will survive attack under commerce clause.” [La Pierre was not advocating for this position, just observing that it was entirely possible that the current Court would find that the mandate exceeds the interstate commerce power.]

I don’t know if Kurt Lash (Loyola LA) thinks Obamacare is unconstitutional, but he does think that Akhil Amar’s 14th Amendment argument in favor is incorrect.

Any VC readers who are law professors who think that Obamacare has constitutional problems and are willing to participate in a debate on the topic are welcome to identify themselves in the Comments below, or to email me. I will post the names of any volunteers. Professors need not take the firm position that the bill is definitely unconstitutional; professors who acknowledge that the bill raises serious and unresolved issues are also welcome.

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