Barnett Schools Klein.

Special to me because of the Cal City connection,
Law Professor Randy Barnett has been on my radar since the summer of 2002, when I paid -- good money, by choice -- to hear him and other legal notables, like then Chicago Law Dean Saul Levmore, speak on basic first-year law school subjects, like Constitutional Law, Torts, Contracts and Crim Law at a pre-law school, private 3-day seminar.

It was expensive, but well worth understanding what I was getting into the next three years in attending law school mid-career. University of Wisconsin Law was good, don't get me wrong, but this panel included the national cream of the crop...

Yesterday Lil Ez -- finally dragging himself outside the echo chamber and admitting that perhaps his UC polysci undergrad degree isn't much of a "wonky" foundation to opine on serious legal and financial issues -- played at being an honest journalist: Instead of pretending to be an expert himself, he interviewed somebody in the know. Instead of preaching to the choir, he listened to constructive criticism from an honest intellectual.

Two years too late, you ask me, but this is what happens when ambitions outstrip accomplishments, intelligence or knowledge. Plus, living in the isolation chamber that is DC surely can't help your pramatic, "how will it play out in the real world?" skills.

EzK: Perhaps you can clarify a distinction that escapes me here. It’s understood to be constitutional for the government to tax me in order to pay for Medicare, which is a single-payer insurance program that I’ll get when I’m over 65. But it’s not okay for the government to say I have to self-insure on the private market before I’m 65.

RBarnett: There are several answers, but I’ll limit myself to two. First, there’s the text of the Constitution itself. The text of the Constitution itself gives Congress the power to levy taxes on people and on income. We can’t dispute that. It does not give Congress the power under its commerce power, at least not expressly, to make them do business with private companies.

The second point I would make is that the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.

EzK: And how does that fall on something like the Ryan plan, where the government says, look, we’ll lower your tax liability by $2,500 if you purchase insurance from private insurers? That seems like the same penalty, the same power, just one step removed.

RBarnett: Most of the justices did not seem all that sympathetic to that argument. Just because the government does have the power to do x, doesn’t mean they have the power to do y, even if y has the same effect as x. There’s no constitutional principle like that.

And by the way, if they have a commerce power to mandate you buy things, then under existing law and financial law, they could put you in jail. Every time you give up a tax subsidy, all you lose is the $5,000 benefit you didn’t get.

It can’t be enforced through imprisonment. And that’s a big difference.
...
EzK: I’m not an expert, so this may be a stupid question: Is “heavy burden” a technical term for a judge to use? Does it refer to something specific?

RBarnett: It’s not. The technical doctrine, which Justice Kennedy mentioned in passing, is that there’s presumed constitutionality for laws passed by Congress. What he said was, notwithstanding that doctrine, don’t you have a heavy burden of justification?

Whoop. Perhaps I spoke too soon on the "listening" part...
Dig this exchange:

EzK: One thread of the arguments that seemed interesting was that Justice Breyer basically said the commerce power is very broad. Congress could pass a Medicare insurance program that covered burial costs. It could push people into insuring themselves in that market. The conservatives are looking for a limiting principle here that doesn’t really exist for this bill because it hasn’t existed in the Court for years. And it often seemed to me that Verrilli’s problem was he had to come up with a limiting principle that he didn’t really believe and couldn’t clearly articulate in order to better target Kennedy. And it seemed at times that Breyer and the other liberals were trying to push Verrilli to just come out and say that.

RBarnett: Justice Breyer definitely argued that.
But I’m not sure the other liberal justices adopted that approach.

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From the comments:

MikeSoja3/27/2012 10:10 PM CDT

Klein: "I’m not an expert, so this may be a stupid question: Is “heavy burden” a technical term for a judge to use? Does it refer to something specific?"

Shorter Klein: Is there a way to weasel around this?

Heh.

Added: Then again, with liberal journolistic mentors like this... what's a soft-sciences boy to believe these days?

The Con-science of a Liberal,
by Paul Kruman
March 28, 2012, 9:39 am

Supreme Ignorance
I’ll have much more to say about the Scotus/ACA stuff later this week; right now, I have travel (and teaching tomorrow, so time will be tight until Friday).

But read Henry Aaron on yesterday’s not-good day. Astonishingly, many of the justices appear not to understand that health care isn’t like the market for cars, or broccoli; even more astonishingly, the administration’s lawyer seemed unprepared to explain the difference. (The Obama administration has been weirdly inarticulate on this stuff from day one; Mitt Romney has done a better job of explaining the mandate than the president has).

Again, more in a day or (more likely) two.

We won't hold our breath out here for any new revelations...

Plus, in his comments,
smell the condescension for ... "We, the People...":

VR, St. John's, Newfoundland

Indeed it is deeply disturbing when a justice on the Supreme court starts making such comparisons. Do they really think that, or was the statement a truly failed attempt at explaining the ACA to the unwashed masses?

Pushback:

ACW, New Jersey

Everything goes up except the pay of the worker who is stuck with fixed costs and is then asked to underwrite things that might happen to him when it's all he can do to pay for things that *are* happening to him. Prof Krugman, and the staff of the NYT who delude themselves they are among us common folk when they are actually like Marie Antoinette's court at Versailles playing at being shepherdesses, believe we should be forced to buy private insurance but no one should be forced to pay us enough to afford it.

There are only so many bucks in my pay packet and they're spoken for. Prof Krugman is waiting for an explanation? Me, I'm waiting for Mr Krugman, or anyone else who supports the individual mandate, to explain how you get manure from a wooden rocking horse.