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Making a case vs. Obama’s health care law

Legal scholar’s opposition gets attention

‘Giving the Congress the power to do these mandates is essentially giving the Congress the power to take over your life,’ said Randy Barnett, a legal scholar. ‘Giving the Congress the power to do these mandates is essentially giving the Congress the power to take over your life,’ said Randy Barnett, a legal scholar.
By Mark Arsenault
Globe Staff / April 2, 2011

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ARLINGTON, Va. — Libertarian legal scholar Randy Barnett, a former Boston University professor who now teaches at Georgetown, fulfilled a lifelong wish three years ago when he appeared in a low-budget sci-fi movie — a genre-blending legal drama about an adolescent parasite from outer space. Most critics ignored it.

Some of Barnett’s interpretations of the US Constitution have been similarly snubbed by his colleagues in the academic mainstream, dismissed as fantasy from the fringe.

But now, Barnett has vaulted into the vanguard of the conservative movement and earned national recognition for developing the basis of successful legal challenges of President Obama’s health care law. His theory on the limits of federal authority appears destined to be examined by the Supreme Court and may end up redefining congressional power.

“Randy has advanced his theories from something widely dismissed to something that must be taken very seriously,’’ said Eugene Volokh, a professor at UCLA School of Law who once clerked for Supreme Court Justice Sandra Day O’Connor.

Two federal judges have ruled all or part of the health care law unconstitutional, based largely on broad arguments credited to Barnett.

That has made Barnett a media star of small-government conservatives. He has argued against the law on talk radio and Glenn Beck’s television program; in guest columns for Politico, the Washington Post, and the Wall Street Journal; and in testimony before the Senate Judiciary Committee.

Barnett, 59, argues that the law’s requirement that almost all Americans obtain health insurance by 2014 is a government intrusion.

Such a mandate is unconstitutional, Barnett says, because the Constitution’s Commerce Clause — the underpinning of much federal regulation — does not give Congress the power to compel Americans to buy a product. In this case, the product is health insurance.

To put his view another way, Congress cannot regulate inactivity as commerce.

“Giving the Congress the power to do these mandates is essentially giving the Congress the power to take over your life,’’ he declared in an interview.

That position was adopted by 26 state attorneys general who banded together in a suit against the law. They successfully argued in US District Court in Florida that the Affordable Care Act — “Obamacare’’ to its enemies — should be overturned. A Virginia judge has also ruled against the law.

Challenges have not been universally successful. Three federal judges have upheld the law’s insurance mandate, most recently Gladys Kessler, of Washington, D.C., in February.

Democrats insist that the mandate is essential. By recruiting more healthy bodies into the insurance pool, the law’s designers hope to spread the cost of other benefits, such as a provision that forbids insurers from refusing to sell policies to people with preexisting conditions.

Barnett’s colleagues have taken notice of his emergence as a force in the health care debate, even as they belittle his theories.

“Randy Barnett is a smart guy, but his argument strikes most constitutional lawyers as ridiculous,’’ said Douglas Laycock, a professor at the University of Virginia Law School. “The justices of the Supreme Court will fully bear the responsibility, and I don’t think they mean to revert to understandings of the Commerce Clause from well before the New Deal.’’

Wearing a business suit and sporting a two-day beard, Barnett said in a recent interview that his libertarian ideals rose from his childhood, growing up outside Chicago in a community of mill and refinery workers. Barnett said he inherited his political views from his father and remembers arguing on behalf of Barry Goldwater in a seventh grade debate.

Barnett was inspired to become a lawyer by “The Defenders,’’ a CBS television drama of the early 1960s.

“I’m a basic child of TV,’’ he admits.

Barnett plays a prosecutor in “InAlienable,’’ a film one reviewer described as “Alien’’ meets “Law & Order.’’

“I’m not saying it’s the greatest movie ever made,’’ Barnett deadpanned, “but it’s the greatest movie that I am in.’’

He was a prosecutor in real life, too, in the Cook County attorney’s office in Illinois. He taught law in Chicago, then at Boston University from 1993 to 2006, living in Newton.

While the health care debate was in full swing on Capitol Hill in 2009, Barnett coauthored a paper warning that if the government can force you to buy health care, it could force you to buy anything.

“Congress could require every American to buy a new Chevy Impala every year . . . because such purchases would stimulate commerce and help repay government loans,’’ Barnett wrote.

Judge Roger Vinson in January — ruling in favor of the 26 state challenges — echoed Barnett, writing: “Congress could require that people buy and consume broccoli at regular intervals . . . because the required purchases will positively impact interstate commerce.’’

Plenty of legal scholars, however, see no constitutional violation in the insurance mandate.

Erwin Chemerinsky, dean of the University of California School of Law, rejects Barnett’s assertion that people who choose not to buy insurance are abstaining from economic activity. The uninsured, he said, are just deferring medical costs until they get sick.

“They are self-insuring because everyone will need medical care at some point,’’ Chemerinsky said in an e-mail. “Taken cumulatively, this has an enormous effect on the economy.’’

Massachusetts residents are already living with an insurance mandate, passed as part of a state overhaul. At the time of its passage in 2006, advocates for the program said people without insurance were acting as “free-riders’’ in the system.

“I do not want to concede that the state mandates are constitutional,’’ Barnett said, though he went on to say that states have broad authority to determine what goes on inside their borders and that nothing in the challenge to the federal law would threaten the Bay State’s mandate.