A Brief History of the Case Against Obamacare

How does Randy Barnett—the law professor and former criminal prosecutor credited with providing the intellectual and legal framework of the constitutional challenge to the Affordable Care Act—expect to feel in the moments before the U.S. Supreme Court announces its decision?

I will never forget the feeling in the pit of my stomach every time a jury filed into the box to announce its verdict. I will have that same feeling at 10am tomorrow morning. Big time.

In a post made today on the legal blog Volokh Conspiracy, Barnett, who hangs his shingle at the Georgetown University Law Center, adds to that remark by noting the uphill climb of the challenge against the ACA and by thanking the numerous scholars and attorneys who helped refine and deliver the constitutional challenge to the individual-mandate provision.

Even after more detailed pieces about the intellectual history of the challenge are published, Barnett’s blog post will remain a valuable chronicle of who did what and when.

Incidentally, in a talk he gave at the Independent Institute in March 1999, “Justice, Natural Rights, and the Rule of Law,” Barnett offered an interesting take on the politics of rights and the integrity of the legal system. Whereas many conservatives profess an allegiance to the rule of law but give short shrift to individual rights, many libertarians do the opposite, he argued. But proper jurisprudence, he suggested, must integrate esteem for the rule of law with the protection of individual rights.

It would be interesting to hear how Barnett would put this principle into practice if the Court upholds the mandate and the ACA withstands any follow-up legal challenges to its other provisions. In any case, tomorrow’s decision is sure to give birth to a new cottage industry, one populated by pundits of one stripe or another who say, “I told you so.”