if this deal goes through, if something goes on with iran that ends the nuclear program and opens up not a friendship but a way to manage our differences and a way to cooperate on the strategic interests that iran and the u.s. share, stabilizing afghanistan, preventing a return of the taliban, stabilizing iraq, stabilizing control in the situation in syria, maybe even is really palestinian peace this could transform the geopolitics of the region, it transformed the geopolitics of the world. those of the kind of thing parrot play. ..

>> i've seen pros stents and catholics who swore never, never shake hands, and i've seen a man walk out of a prison cell that's held him for 28 years to become elected president of a majority ruled and free south africa. i've seen the carolina panthers win eight games in a row and go perfect in the nfc south division, so don't tell me it's impossible. it's just hard. thank you very much. it's been a pleasure talking with you today. [laughter] [applause]

>> great stuff, joe, spectacular. as you're thinking of questions, we have a boom mic in the back to bring around to anyone with questions. we will not leave here until we get questions from a student or two, so get them cued up. i'm mike holly, board member of the world affairs council, and as you prepare to ask questions, i have to say one ning, and that is, if you're in the a member of the world affairs council, we need now to be. that's true of everyone in the room, but also true for those of us watching on c-span, sign up on our website. we'll be glad to send alerts to the mens that come out regularly. follow what's going on with some of the exciting things in our community. this is really a spectacular place. there's some remarkable global thinking going on here, so with that, let's open it up for questions. we've got one right over here. we'll wait for the microphone to get there, and then we'll

recenter after the question and get the answer from joe. >> hi, joe, thank you very much. that was very interesting. i have a question for you. i -- my father was a marine in the 40s during the world war, and in the canal and i wanted to hear your take on how we did use the bomb back then to end the war and in a lot of ways, saved millions of people, just wanted to know your viewpoint on that part of history and probably goes along with your passions. >> yeah, sure, thanks. my father served in world war ii as well. he flew bomber missions over normandy and other theaters in europe, died of a war-related injury, and one of our advisory board members is george schulz, former secretary of state, a

marine on a transport ship heading to japan for the invasion of japan when they heard the news of this new weapon that they believed had ended the war, and to this day, he believes that saved his life and livings of many others. this is an ongoing historic controversy. whether we needed to use the bomb. i completely understand why we did it, and by the time we used it, this weapon that we never intended to use when we started building the bomb was to defend ourselves. we only built it because we thought hitler was building it, and we have to get the device in time to detour him from using it. it was designed to start the manhattan project, counted conceive of anyone using a weapon like this, but by the end of the war, we had related hundreds of thousands of people in the fire raids, tokyo, and nuclear bombs, like one more

weapon in a terrible, terrible war. it was not that. as it turns out, it was not that, strategic, a decision to use it, but it was automatic. in fact, historians say truman never wrote the order to drop the bomb, but did not stop it. it was a train in motion. some of the scientists who built the bomb wrote a report before the first test after hitler was defeated urging the government not to use it. do a demonstration shot. show the world what will happen. if you use it, and there's not in place an international control regime, we will see a flying start to a nuclear arms race. a few years to lay, that is, in fact, what happened. one of the consequences of using the bomb is we let off this insane nuclear arms race to develop a bomb a few years after we did, and we ended up by the

1980s with 70,000 nuclear weapons in the world, not bombs, but hydrogen bombs, ten, 50, a hundred, a thousand times more popular than hiroshima. nuclear nuts during the cold war and now working down, the arsenals declining. i think it could have been prevented if we didn't use the bomb. on balance, on balance i think we shouldn't have used the weapon. we should not have dropped her hiroshima. we were winning the war anyway. the emperor of japan was preparing to surrender. i don't think it could have caused a land invasion at the japan, just wait a few more weeks to see if the surrender talks were, in fact, going to succeed or not. i know it's controversial, but

you asked my opinion, and that's it. >> questions? a student question up front here from providence day school. tell us what grade you're in. >> junior. >> at providence day? >> yes, sir. what would the world response to a policic missile attack on palestine be by israel since they have not signed a nonproliferation agreement or any agreement of that sort? >> it's a good, tricky question because, well, israel actually wouldn't attack palestine, and by "palestine," you mean the west bank or gaza with the ballistic missile. ballistic missile is a long range weapon going hundreds of thousands of kilometers. if there is a conflict between israel and the people of palestine, it's tanks and mortars and air drops.

take the ballistic part out, and you're asking what would happen -- well, we've seen what happened. i mean, israel did an incursion, an attack on the gaza strip awhile back in response to repeated rocket lamps from the gaza strip into an israeli town. the world does not like it. the world j nnl -- world in general sees a true negotiation, but the world tolerated. there's not much the the world can do other than urge the two sides to form, meek a cease fire, and so what you see, especially in the past couple decades, is what used to be very long, tougher brutal wars, and now are often very short, incursion. three or four days, couple weeks. i think that people of israel are tired of war. i know. i have family in israel. they are tired of war.

if they thought they could get a deal, they'd trade land for peace, but the question is, can they get a deal? is there a responsible negotiator to deliver a deal on their behalf? as you raise the question, secretary of state john kerry is in israel today trying to get israeli palestine peace talks going again. he took on the mission. i give him a lot of credit for this. this is a tough, unrewarding job. nobody asked him to do it. he went and did it. as a result, this becomes one of three u.s. goals in the middle east. we used to have a lot of them. now we're down to three as the president said, stopping iran from getting iran, stopping the conflict in syria, and getting an israeli-middle east peace settlement. that what encourages me about the irani talks is if you get deploam sigh there, it spills

over to the resolution of the conflict and gives life to the diplomatic effortings, the only real solution to the peace processes. it's tough, tough work. diplomacy takes time, but delighted to see the leader of the country bring peace to the troubled conflict. >> time for one more question. >> [inaudible] >> i'm from south korea, i want to ask you about the north korea, there's opinions about if the country has the ability to produce nuclear weapons including bomb, and what's your opinion about that? >> north korea has a demonstrated capability to produce nuclear weapons, three nuclear tests, and the first two were not successful, and the last one clearly was successful. they now have the ability to produce a first generation nuclear device, and they use

plutonium for their devices. they probably have enough -- we don't know how many weapons they have, but we have a pretty good idea how much plutonium they produced so we think it's somewhere between three to eight bombs worth of material. we did have negotiations during the clinton administration that froze the plutonium for eight years, but we stopped the north korean program in place, but there was a difference. in the bush administration, and they were cheating in the agreement, and the bush administration then pulled the plugs on the talks. as a result, they then moved ahead with the three nuclear tests, and now they declare themselves a nuclear weapons state. if we can solve the iran problem, if we can demonstrate that diplomacy makes a deal with the regime, it's changing the regime behavior rather than change regime, that might have benefits with the situation in north korea.

partially, influences the north koreans, but more importantly, influencing the partners around north korea, particularly, china to persist in efforts and pull back north korea's program. >> we could go on all afternoon, i'm confident, and, actually, joe east going to be here most of the afternoon. what we'll do is we'll take a break now, and joe will be outside signing books, greeting you, and i'm sure happy to talk further with you, so if you would, please, join me in thanking joe for his time and for visiting with us in charlotte. >> thank you very much. it's been a real pleasure meeting you. thank you. thank you. [applause] >> and with that, we're adjourned, thank you very much. [inaudible conversations]

>> i think just the sheer number of books people are self-publishing is tremendous now, and i think that, you know, they have a lot more -- they have a lot more available to them than authors ever had before. now there's things like crowd funding, kick starter, pub flush, strictly publishing, where people go and raise money on their own to do the things they need to do to publish, we like to say to, to publisher smarter. i think a lot of people now, the more they sort of learn, the more they realize that there are things they can do themselves, i think before that, a lot of them were going to the self-publishing company, whatever company, and purchasing the package. i also think that now there are a lot of published authors that

are hybrid. you know, publishing traditionally, and choosing to self-publish on their own. i think it's a mix, but just the sheer numbers come from the idea that, you know, people are starting to learn to do it right, turning out quicker, writing better, finding an audience, and they are, you know, now there's a demand. >> she also explained how the annual expo has both reflected the growth of the self-publishing industry and assisted it. >> in the beginning, we had to reach out to find speakers, to find exhibitors, and now we're in a nice position where people are coming to us and saying, can you speak? you know, and we'd like to have a visitor, and can we take a table?

what does sponsorship entail? you know, the tables have turned because i think that people recognize there are not a lot of shows like this. there's, you know, a very nice job with theirs, and it's part of the bigger bea, and there's separate enough time-wise so that, you know, one doesn't infringe on the other, but, really, other than us, them, small shows popping up, internet only, and there really isn't a lot out there, so i think because of that, we benefited year after year after year, and i think, you know, now people sort of look to us as being kind of thee show for self-publishing and, you know, and that's a nice thing, and where else does it go in the future? you know? >> you can watch this and other programs online at booktv.org.

>> next on booktv from the heritage foundation in washington, d.c., a discussion on legal arguments against the affordable care act. editor of the book and a panel all professors and bloggers for the conspiracy website. talk about the impact of the arguments on the obamacare debate both in public and in the courts. this is about an hour-15. >> thank you very much for being here, and i applaud your souls to brave the cold weather today in order to be here. we are here today with several distinguished panelists to talk about a fascinating book about assassinating case, national federation and better known as the obamacare case, and as i read this book, i thought that i was really watching some very,

very smart people, who, of course, respect each other, but who are in no way, shape, or form shy of challenging each other, and they advanced and refined their arguments as the book progressed, covering many facets of the obamacare, in which they will discuss today. >> legal and civil philosophy, got a degree at the university of colorado at boulder, and his law degree at the university of denver, stern college of law. in addition to providing a brief overview of the book, trevor will also talk a little bit how

current problems we read about with respect to the affordable care act relate to the case. next, we'll hear from professor solomon, a professor at george mason yoofort school of law where his research focuses on constitutional law, property law, and the study of popular political indications for constitutional democracy getting a ba degree from am hurst, masters from harvard, and juris from yale law school. he clerked for the fifth circuit judge, jerry smith, and in addition, by the way, against obamacare, i will gladly put in another plug, he's the author of another book here, "democracy and political ignorance: why smaller government is smarter," and his articles appear in scholarly journals. he's going to discuss competing

constitution thal visions that were at play in the case, and also about the role of the roll of conspiracy in terms of influencing the debate that surrounded the case. we'll hear from orin, the fred steenson research professor of law at george washington law school, got a ba from princeton, a master's from stand ford, a jury sis from harvard, and after graduation, he clerked on the third circuit for judge leonard, and on the supreme court for justice anthony kennedy. he's nationally recognized scholar in the areas of criminal procedure and also computer crime law. he worked for a while in the department of justice's computer crime and intellectual property session argued many cases throughout the country including u.s. supreme court and his articles have appeared in top legal journalisms, and, in fact, in many judicial opinions. orrin described as a one-man

mute court with respect to the debate will discuss what role academics and commentators play in the runup to the case, and he will compare that with the role that academics and commentators played in other supreme court cases. last, certainly not least, weal hear from randy, the car mac water house professor of legal theory in georgetown university law center teaching on a variety of subjects. they featured the case prominently in the obamacare case, author of over a hundred articles and views as well as nine books, and randy discusses the roll politics play the in

the negotiation. join me in welcoming the panel, and we'll turn it over. [applause] thank you very much, john, and thank you to the heritage foundation for putting this on and helping out in the litigation with the case, and i want to thank the conspirators, three to the left here, and some i represented, david bern steen, dave, my professor in law school, for giving me the opportunity to work on the book, which was incredibly fun, got to relive some of my own past because i had the interesting experience of coming out of law school and working on the biggest supreme court case in 50 years. that was somewhat surreal thanks to working at the cato institute. i'm going to give brief comments how i saw the case, and i lecture about this throughout the country, and i sometimes feel like i have to return people to civics class.

they make the world awesome, which is awful if they did, and first, i wanted to discuss just so we have a frame of reference here on the way the law works, or does it work, as the cay may be, but the general theory is it's important to realize this so we can talk about the future dysfunctionalty of law and how it plays into the way the case worked out. the obamacare is a -- i would call it a political subterfuge built on three pillars in order to create the functional equivalent of the single payer system calling it a market. now, what do i mean of that? it's a political subterfuge. how is it a political subterfuge? they were not taxing. they just made you give money directly to a private company. now, there's -- why did they do that? well, because they told the private companies, the private

insurers, they had to cover preexisting conditions at a price controlled rate. your insurance company, and you're told you have to cover all preexisting conditions and you can't charge more for that. you say, hey, what about the money? we need the money. the government has choices. one, doctorately subsidize the insurance company, and raise taxes accordingly, or the other, they could participate in a political subterfuge and make you purchase insurance not to raise taxes. this is a huge part of the law, unquestionably part of the subterfuge, and if you look at the scoring of the law, origin nayly, there's a way of scoring where if you take control of the industry too much, they'll consider that part of the cost of the bill, and the way this worked is that they asked the cbo while drafting a law saying, how much of a percentage of what's called a medical loss ratio, which is how much the insurance companies spend on administrative costs, how much make you include the cost of the

individual mandate and the bill? they said, 89.5%. the law says, all right, 89.5%. exactly, it's right there so you do not include costs incurred by individual people in the bill. what happens next? well, everyone has an idea of the death spiral, which is that the next thing you get out of this is you need people to spend money on insurance than they would otherwise. this is not a bug in the law right now. this is 5 feature of the law, there's no way it works otherwise. you have to pay more for insurance than otherwise for things yows don't cover yourself to sub diversions dies sick peek who consume more health care. the biggest mistake in the law was not selling in the redrixist law. people are going to be finding out over the next year this is a redistributionist law, and they pay more because it's in the law. it's not a bug. it's a feature of the law. that will bite them in 2014 elections in particular. that's what the individual

mandate does. it subsidizes the rest of the cost of the law. now, there's direct subsidies and other taxes i'm not getting into from the 2700-page law, but that's the idea. what they talk about more is can congress do this under the commerce power in particular, and i'm not getting into more nuance because of the decision working out. going back to civics' class, i thought it was very simple, and i was recently lecturing to germans about this, and they were saying, ooze you get from europeans a lot, well, what's wrong with more health care? what's wrong with this being the case? why are americans so against washington, d.c. having this better health care system, your health care system is bad. if you have european friends, you heard this before, and you have to say, no, the way you are thinking about this is wrong. the question you ask yourself as a german is how would you feel is brussels took over your health care decision? not berlin, but brussels. well, you know, brussels doesn't

have power over that. why not? they kind of have power over commerce. and all of the laws of germany affect the other lawses of the e.u., why don't they have power over health care? that's the question that we dealt with with hundreds of years in our jurisprudence in our constitution was the idea that commerce is a type of thing and not an effect. it's difficult to understand it, but it's a type of thing, increasingly, the government said this to effect, we need control over all zones, all effects in the zone in order to make our carefully crafted schemes work better. that's the way the commerce clause expands, and that's going to happen in euro. mark my words. it will happen in europe. the drug laws of amsterdam, manufacturing laws of germany, all impediments to a crafted scheme from brussels to rationalize the entire european

economy, and what do we do about this? local laws impede commerce, well, yes, they are because you can't make that argument. this is a difficult problem. if someone comes along and says we have power over individual people who have not purchased health care, because they are an effect on commerce, the only thing we can say is, yes, they do. individual people not purchasing health care is the type of thing commerce does not apply to whether or not they affect you or not. if your power is affecting the economy r it's limitless. we won that battle, and they'll talk more about that. i just want to make a few last comments about where we are going forward. the decision was not a win for obama administration in many, many ways. worse thing was for the law to

be kicked out, and the second worse thing is people to have choices to purchase health care or not and states to expand medicare or not. that was the second worse thing that could have happened because as i explained the law the way it works, now the supreme court articulated it in the mandate is like a no parking sign that is not actually a no parking sign, but you can park there and pay a fine. that means they have the cbo has a league to assess the law because they no it no longer has a legal command of what it needed to work even if it was going to work, so that was the worst thing that could have happened, and that's going to make the law spin out of control faster than before. the challenge we have beginning forward is to articulate a vision that says the reason this law did not work was not because they didn't have enough power, but because they took too much. that is the road, that is talked about, the fight we're in. after the law failed, the next question is the reason it failed is because of the choice, a loophole, giving the states

choices, and that's a loophole, and there was not enough power, and those are loopholes. in this context, the loopholes are your freedoms, and freedoms are not loopholes in a system of limited government, and that's the fight we have to win going forward when the law does and will collapse. thank you. [applause] i'd like to start by thanking the heritage foundation for organizing this vermont and all of you for braving elements to come here, and, also, my fellow panelists and professional trevor for doing the hard and painful work of editing dozens which was not an easy task for people like us involved in the project, getting compleaks to cooperate together is like herding cats, perhaps worse.

i'll talk about the role of conspiracy in the public debate over the issue. i think, ultimately, this case developed into a clash between two competing visions of the constitution and federalism. on the one hand issue you have what's the new deal or post new deal vision which is held by probably the majority of legal academics and many other people also especially those in the political left, and it holds that especially after the new deal congress has and should have the power to regulate virtually anything that affects the national economy anyway otherwise we would not be able to effect a modern comp kateed interconnected economy, and in particular, in addition, this stuff should be left to political process rather than for many rennes including the fact they don't have the bureaucratic and administrative expertise in the way the

congress does or federal bureaucracy does. on the other hand, you have an opposing vision saying congress should be limited by the widest of e newspaper raced powers enumerated in article 1 of the constitution, and the judiciary should enforce the powers and also holds it's a good thing in the real world to enforce those boundaries because having a federal government with too much power is harmful rather than beneficial, and the individual mandate, in particular, was, n., an unavoidable clash between the two competing theories of how to interpret the constitution because the argument for the mandate under the commerce clause is the idea that congress can regulate people who have no health insurance and force them to buy health insurance. why? because not having health insurance in the aggregate affects the national economy,

and the problem with the argument is, of course; the same is said for any decision to do anything or not do anything anywhere else in human life in american societiment for example, it applies to famous broccoli analogy discussed in the debates and discussed in the book. if you choose not to purchase broccoli, that has an effect in the market for food and other parts of the economy. if you do not exercise regularly, that reduces your economic productivity and have an effect on the economy, and i can make the same analysis for pretty much anything else that you can think of, and, therefore, this core argument for the map date has no limits. moreover, it made congress' other powers in article one of the constitution redundant. for instance, if the power to regulate interstate commercial enables congress to restrict or regulate things that affect the economy, congress does not need

the power to coin money. after all, coining money affects the economy, does not need power to raise armies. raising armies affects the economy, and i can say similar things for everything else on the widest of congress' enumerated powers. recognizing the problem, the federal government tried to make a case in the book called health care special arguments saying, well, this is a special market that's different from anything else. in the book, we go through it. they say health care is special because unlike most other products, everybody purchases it at some point in their lives. now, to some extent it's true, but notice that the focus shifted from health insurance, which is what you are required to purchase to health care, which is just a broader category. by the same kind of bait-and-switch, i justify the broccoli man date, not everybody likes broccoli as much as i do. many people do not purchase it, but everybody is in the broader

market for food of which broccoli is just one part. the market for food, in fact, is more difficult to avoid than the market for health care. try avoiding it if you don't believe me about that. [laughter] i can make a similar analysis for any other product, maybe unlike all of us, you don't read the conspiracy but get information through some sowter somewhere, all part of the broader market of information so we justify mandates requiring all of you to read the bulletin conspiracy every day by the same kind of -- i like that idea. [laughter] maybe we should have that mandate. [laughter] you get the point. the government created various clever and sometimes not so clever health care arguments, ultimately, they fell apart under close inspection.

even if the man day-to-day was not authorized by the commerce clause alone, maybe it could be authorized by the proper clause, the latter close, gives conk the power to enact laws necessary and problemmer for cares and to execution other powers granded to congress. going back all the way to the famous 1819 case, the supreme court defines "necessary" extremely broadly as anything useful or convenient, and going into the case, it's unlikely the supreme court overrules that definition of "necessary," even though i, others, and james madison had problems with it. we will not win on that. [laughter] however, we felt, and there's a lot of evidence to support this, that the necessary and proper clause requires not only the lobby necessary, but also that it be proper and that actually is what sievert of the founding fathers said at the time, the supreme court said it previous as well, and the question is, well, what does "proper" mean in

a brief developed on behalf of the washington legal foundation we argued that at the very least, proper means you can't justify a law by logic that gives congress virtually unlimited power, or as james madison put it better than i could, whatever meeting the clause may have, none can be admitted that would give an unlimited discretion to congress. as it turns out, the federal government's theory of the necessary and proper clause under the case would, in fact, give that exact unlimited discretion, and that's why actually five justices rejected their necessary and proper argument giving the most thorough treatment of the proper aspect of the necessary and proper clause that the supreme court has ever given in its 200-year history given proper enables you to create some sort of ancillary power to one of the enumerated powers, but not to create a great and independent power. the necessary and improper clause is used to pin a tail on

a dog, but not to pin a dog on a tail, essentially what the federal government was trying to do. much more could be said about this, but this is one of the more important parts of the clause. i discuss this in the book, and there's a separate article written about this. now, finally, in the last couple minutes, i want to talk about the role of the conspiracy in the debate. part of it was that some of the arguments used by the people challenging a mandate were, in fact, first developed by us in the conspiracy by randy who was, according to the "new york times" the god father effort constitutional case against the individual mandate, but, i think, perhaps, equally important role of the bc was in breaking down the perception that the other side of the don't was trying to create, especially at the start, that virtually all experts agree that the mandate

was clearly constitutional, so if you thought it was not constitutional, either you were sort of, like, an idiot who did not know anything about constitutional law or a partisan hack for the g.o.p. or interest group perhaps, and i think the conspiracy breaks it down because early on we put out arguments against the constitution of the mandate and people like randy, david, and john and others are -- they were not dismissed as hacks, but, therefore, over time, many people including many people who did not agree with us had to recognize there was a real debate there as opposed to a slam dunk sort of federal government. moreover, the format influenced this debate in a way we might not have been able to through traditional means for a couple reasons. one is the conspiracy thanks in large part to ewe yen, not

involved in the case, but founded the blog, had a large preexisting audience among legal scholars, journalistsing and others influential in the debate. secondly, because we could post almost instantly any time we wanted, respond in realtime to claims that were made by either side in this debase, and that gave us tremendous advantage in doing things over conventional media or a a crew writing view articles, which are great, i write mist, but they tyke months to come a and very few journalists who are nonexperts are likely to read them. i do not argue the conspiracy was the only factor in the debate or necessarily the most important. it clearly was not. in the book we discuss many other factors that were relevant, both political and legal, but i do think that this is an interesting example of the blog having an significant influence over a debate related to a supreme court case, and i suspect that similar things happen in the future, and it'll be interesting to see how this

technology develops over time, and how it continues to influence legal debate. on that note, i conclude, but i very much look forward to your questions. thank you so much. [applause] >> all right. >> thank you for the invitation to be here to talk about the book. i wanted to pick up where you left off talking about the book and the post making up the book. as the law posts, asks, way were we doing when we were writing blog posts? i think there's ways in which the blog format are changing the nature or at least some aspects of the supreme court advocacy, and blending some old categories. i wanted 20 think about this blog post making up the book and think about how the laws in

particular may be changing the debate with really the material in the book being just one example, maybe the first example, first public example how it happens. i was -- what led me to think about this is i have the page of the book on my desk the same time i had an article about yale, some are familiar, and a professor at the university of michigan, a real giant in my academic field of criminal procedure, and then in the 1960s, when he was a young academic, he wrote a series of law review articles rethinking the basic understanding of the nature of constitutional criminal procedure narrow up until that point, came along and said, hey, we're reading cases wrong, the history wrong, we need a new rule for the supreme court and laid down in the

series of articles published in traditional journals and in chapters and books, new ways of thinking about constitutional possibilitieses, for example, the mir randy rights, the miranda decision in the 1960s in part reflecting the idea that yale had that the fifth amendment should not be limited not courthouse, and also by indication touring interrogations, and that was the organization that he had laid out, and there was a sense you have going back looking at the articles from the 19 *6 0 #s and the supreme court decision that followed that he was playing a role in changing the terms of the debate. the academic voice was saying, well, here's a new possibility, and then, you know, good enough, two or three years later, and the supreme court would come out with a decision that you laid out, and that was an example of the academic engaging, and could consider something like advocacy

support, something like a way of pushing the courts, opening up the courts to new possibilities, and in this case, it was basically a political label on it, liberal, academic, pushing a liberal supreme court in a liberal direction, and i think there are ways in which what we say with the blog post at the conspiracy, the mirror image of that, academic opening up conservatives, again, putting labels on things just for the sake of expedience, pushing the law, offering ways of pushing the law in a more conservative direction. there's sort of a which it it ours before, and what's interesting to me in ways the dynamics are different, there's similarities there, and one is the time, and there's an article, but it comes out a year later, and there's a case three or four years later.

it's the fact you can get opinions quickly, ewe know, i was in law school in the 1990s looking for opinions from the library, took days, weeks, or months to come out, and what the court had held, and, of course, today, the opinions, and, in fact, it's frustrating, the judge releases the opinion at ten o'clock, and you have to wait until 10:15 or 10:30 hitting refresh, refresh, refresh, why is the opinion not in front of me? it's outrageous. [laughter] if you're a tenure the academic, you have time, i want to write on the opinion, i need the opinion out, and you think in terms of minutes or hours, not in terms of days, weeks, or months, and the debate leal l

really has become instantaneous, and the counterpoint is instan instantaneous too. in looking at the book, many were on the same day, or over a period of two or three days, and so effectively the debate is occurring in realtime, and in a very public way. this is the site that anyone has to read, and the site, fills up readership more than a decade, yo #u could have a lot of yorks u know, law nerds following cases reading about it, reading the counterarguments, and if you're really, really bold, go through the 500 comments. [laughter] really, really bold. you can wage through the comments, add comments, comments on comments, and all debates you can have in realtime, and the speed element is new, so i think, you know, one fascinating aspect of the case is some perception of the arguments and arguments themselves, more offing in realtime, they were -- public attitudes about the

arguments were changing in realtime k and it was just happening really, really quickly, and i suspect that that is sort of the example of how it's going to be, and what is the second point want to make about this is laws allow an interesting mix, not only of the role of scholar and advocate, but scholar, advocate, and litigant. there was a 2009 law review to the stanford called expar tray blogging raising questions about the ethical limits under the legal ethics rules of blogging, and the author, rachel lee, had the following concern: well, if you have a blog posted in the legal community that folks read, an infinite resource to offer, by the time the briefs are filed, the briefs are an afterthought. the blogging sets the terms of the dente, and if only one side is blogging, one side gets the

file infinite; right? keep writing about it, or are there limits on one side's ability to blog about a case that a blog case is a bleak read in disguise, and i tend to think the concerns are over blown because, ultimately, it's a public site, and people discuss the case, and in the same way they write an op-ed or have a press conference on the case, posts are an extended version of that. at the same time, you have have in high profile cases, blogs change the nature of the debate on pending cases. you can have both to change the understanding of issues. sort of debate issues, in ways that, you know, i remember -- when i was a supreme court law clerk, i clerked in 2003-2004, i read blogs. that's what the other clerks did

too. they were the people interest the in tending cases, and if you're a law clerk and there's a post about the case you work on that day, you want to be reading it in case it's relevant to what you do. you don't have to, obviously, but it's out there, and you might find it. we're seeing in the interesting blend where the merit is another round of briefing in what can happen, and the public debate, and i think in the affordable care act, that was an example, and if you followed the blog post for a long time, there was a repackaging and slightly altering argument that had been debated in the public's speer for a long time, and i confess that's just, again, beginning to be something we have happen more and more in the brief, and the

legal briefs filed in the case, and, you know, justice scalia only reads the brief. [laughter] scoffs at blogs out there. [laughter] you can imagine others say, well, you know, if i wanted to know the extended version of the argument, i don't want to have the page limit version or interested in a specific issue, look, there's a series on this issue. go to that if you want to know more. i don't know if we'll have the official blog post for a particular case or, like, the doj blog where they get it offer theirs or have their own version. i wonder if they play the broader role. in my mind, ultimately, that's a good thing because if you don't want to access it, you don't have to, of course, the briefs will be there.

the affordable care act case, i think, probably is the example now of bleeping of roles, and it leads to the briefs being one of many parts of the public conversation. >> thank you. [applause] >> you are sitting in the location where the first public argument against constitutionality of obamacare were held in december dwien. he was on a organized by the heritage foundation presenting the paper that we wrote for heritage in two weeks arguing for why the affordable care act

was unconstitutional, which was not out of committee yet, and it was a paper written of the heritage foundation, and stuart, a legal associate, who helped do the heavy lifting on drafting as legal associates do, scene we wrote this paper that we presented in the room. i remember meeting hatch in the green room outside the door here, the keynote speaker, and first he spoke, gave a wonderful speemp about why the act of up constitutional mir wering our unites, and i had a dobbed about it, and he argued it was unconstitutional, and who did they dig up to argue that the law was constitutional? it was none other than eugene, the head of the conspiracy that founded, and i thought the reason we never heard of him in the course of the debate, one way or the other, because he was op orrin in the debate arguing it was constitutional, and

wanted to stay away from the argument as it developed, but it happened in this room, and heritage foundation deserves tremendous amounts of credit what happened in terms of the challenge. the other thing that's probably less well-known than the fact we had a public event here repeatedly after the public event, went upstairs, briefed congressional staffers on argument, and this was crucial because up until this point, we, although the senate has a preed chiewr in which you make a point of constitutional order to object to the constitutionality of the bill, it was not clear they would make the objection because it was not clear that they knew why the bill might be unconstitutional, and it was during the briefing, the private briefing we had for the staffers upstairs in the building leading the argument that subsequently shortly thereafter senate republicans made a point of constitutional order, there was a televised debate on c-span, which brought to the public for the first time the arguments that were against the constitutionality of the affordable care act own which

they relied on the heritage foundation paper making that argument, so it all started here, and here we are again. before i say much more, i just want to point out something that has not been said up until now, and i was reading it, and i couldn't put it down, and it was not my own stuff i was interested in, although, i like that stuff too. [laughter] it was not just me. it was just a fascinating read, and so i want to urge people who think, well, you know, fine, i watch the program, and now what, and why do i read the book? it's an interesting debate, that is just interesting as you see it evolve in the emotions coming

out the blog posts. when you walk from the book, you don't understand constitutional law better, and, in part, because, orrin, immediately to the right here, served as the protagonist, our resident house speb tick, the person who did not buy the arguments we were selling, and he was just absolutely persistent in objecting dissent in a very, very powerful way and made us refine arguments and presents organizations, and if not for his contribution, the book would not read as the dramatic evolution that it does. at any rate, read the book because you'll like the book. it's a fun book. now, before i go on, some of the people who may be watching this at home think, well, why the heck is there a book about the challenge to obamacare when the challenge failed? what's the point? we know the supreme court, we

think we know that the supreme court there's two issues at stake in the lawsuit. one was to say the country from obamacare, and the second was to save the constitution for the country. by "the constitution," i mean enumerated power scheme in the constitution that says that congress only has limited and enumerated powers, both issues were always in play because the arguments that were offeredded by the proponents of the affordable care act constitutionality, those, both the government and its academic enablers were using arguments that would have virtually eliminated the enumerated power scheme of the constitution, and so we -- if we'd lost this case in a certain kind of a way, we would not only inflicted

egregious and completely misnamed patients, protection affordable care agent on the country, but in addition to that, at the same time, we would have eliminated the enumerated power scheme that the supreme court never repiewd imraited in the history of the country, and that would have also happened. it would have been a disaster. a constitutional disaster. and that is what we avoid the. we did not seek -- we did not seed in bringing down the act; although, we weakened if in ways that prove to be important in the future, but we did succeed weakening the five votes for various legal positions that most legal academics thought were of course mistaken, and to summarize, i'll read four bullet points coming from my remarks in the book itself of a what we want in the case. it says, i said, we fought this case to deny the federal government the power to citizens to engage in economic activity. on this, we won. we fought this case to prophet

the court from adopting the organization that congress could adopt any means mote promibted when regular lamented in the national economy. on this, we won. we fought this case to prevent an end run around the limits of commerce and necessary and proper klauss by using the tax power instead. on this, we won partial, but significant victory. finally, we fought the case to establish conditions on federal spending that constitute compulsions on state as unconstitutional. as chief justice stated in the victim in south dakota v. dole. on this, we won. they were important points of constitutional law, and to the extent constitutional law matters to the decision of the courtings we established good constitutional law in the course of fighting this fight. in the time i have remaining, i want to make, basically, i want to make two different points, cover two things. one is on the judicial

philosophy and roll of politics in the case. first, briefly, in part, the reason why we ultimately failed to defeat obamacare in course is to the extent that we did fail to defeat the law itself is part of the wages of crying judicial restraint that judicial conservatives of various political ideological stripes advocate for many, many years. it start the with the political progressives, argued against the supreme court validating laws beyond congress' power in the name of judicial restraint, and this was takingen up by political conservatives arguing for political restraint, and now we have a judiciary that has, in part, selected and chosen by republican presidents and confirmed by republican senates when adhered or claimed to adhere to a philosophy of judicial restraint deferring to what they consider to be even more authentic, authoritarian, accountable branches of the

government, either congress or legislators at state level. it's a big mistake. why it was possible for john roberts to save the law by adopting a saving construction, which was not what u law said, but in other constructions in order to uphold the law because behind him he had the impulse of judicial restraint that put him on the court in the first place, 245 had put other justices in the court, and it's a miracle that four justices who also got on the court adhering to various strains of judicial restrain actually realized at this point it was time for judicial engagement.

>> when we use the term constitutional, whether this law is or is not constitutional, it's ambiguous. there's three different things we could mean. first of all, we could mean what it is the constitution says, is it consistent with what the constitution says and what the constitution means? that's the old-fashioned way of doing it. that's the archaic way of doing it. but that's one way of doing it. and in this sense, there's no question that not only is the individual insurance mandate

unconstitutional as violative of the original meaning of the text of the constitution, but the entire act is. the regulations of the insurance companies themselves are unconstitutional, although we didn't challenge that, because insurance is not commerce under the original meaning of commerce. commerce is the trade and exchange and movement and transportation of goods and people. all right. so that's the first sense. what does the constitution say, and what does it mean. the second sense is what has the supreme court said in the past, and what did it mean when it said that. this is constitutionality according to precedent, constitutionality according to what the supreme court has said. that is what we were debating on the blog. whether the supreme court's precedent said that this was unconstitutional, whether it said the law was constitutional or somehow unclear, allowing this to be a case of first impression which would require lower courts to say whether this was constitutional or not consistent with its prior or decisions. that's what the constitution says and what the supreme court has said and what the supreme

court meant when it said it. now, the third sense of constitutionality is are there five votes to strike down a law or to uphold the law. that's the third sense of constitutionality. are there five votes. now, when i'm interviewed by reporters about whether matters are constitutional or not, that's, generally speaking, what they want to know, do you predict it's going to go down or be upheld? unfortunately, that's what most law professors when they're quoted in the press confine their opinions to. but thats' really a separate sense of constitutionality, and we need to keep these senses separated this part because i do think it's the case that politics does enter into this third of these three senses as to whether there are five votes or not five votes to invalidate a law. as i noted early on in this book this a blog post, those who were confidently predicting that the supreme court would never invalidate this law, i think,

were not taking into account the politics of this situation. they were assuming that the law once it was passed, after it was passed, would be popular. but what if it was very unpopular? the courts are very loathe to strike down a popular law. what if not only the law was unpopular, perhaps i say in there one or both houses of congress flipped, parties as a result of this -- and supposing that a serious repeal effort was made in the house that got filibustered in the senate, well, it turns out the republicans didn't take the senate, so there was no need to filibuster. how would that affect the willingness of five justices to invalidate this law? i think it did affect the willingness of it. the supreme court of the united states is a very mainstream institution. it always has been, and it always will be in part because of how justices are selected, by the president of the united states and confirmed by the senate of the united states. so there may be some justices who were kind of on the right side of that mainstream and on the left side of that

mainstream, but you don't get to be a supreme court justice or even a district court judge unless you are relatively mainstream and you think mainstream. so it matters where the mainstream is. and this book and the blog posts that took place, the blogging that took place in this book as well as what happened well beyond this book, when the heritage foundation came out with its paper, and then there was a c-span debate, and talk radio picked up on this, and i started getting phone calls in my office after that debate on c-span asking me my opinion about this. once that happened, by the time the lawsuits were filed in march, there was already an important public awareness of the constitutional questions that are raised by this case. i've never seen anything like it this my lifetime, i don't know that we'll ever see anything like it again where the public's actually following district court proceedings. [laughter] way before the appellate, the supreme court gets involved. and this politics is still working. this is the concluding remark i'm going to make. we would not have gotten so so

far, we would not have got gotten five votes if it hadn't been for the fact that that was a relatively mainstream conclusion for the court to reach when it reached it, and going forward there are other constitutional challenges that are still out there. there are challenges based on the interpretation of the statute, whether subsidies, federal subsidies, for example, can flow to people who are participating in a federal exchange as opposed to state exchanges, there's a very important constitutional challenge about how this bill, which was a bill to raise revenue, originated in the senate rather than the house as the constitution requires it to be. this is the so-called origination clause challenge that's currently pending in the district -- d.c. circuit court of appeals. whether these lawsuits have any legs or not, whether they will get any tractions in the third sense of constitutionality; that is, can you get to five votes, will depend in important part on whether the affordable care act is popular or unpopular and

whether the court believes it is disrupting or interfering with the public good or rather be doing the public a big favor if it were to invalidate this law, send this issue back to congress where it wrongs, and let's do -- where it belongs, and let's do health care right this time. we need health care reform many this country, it needs to be a good reform. i agree with what trevor said, this was a way of doing single payer. that's why insurance companies bought into it, because they get a lot of money out of it, but that's really what's happened here. and we're seeing the consequences now. and by the way, it's not just the face plant that the law has done out of the tunnel as it's run onto the field. just wait until it starts working the way it's supposed to work, then you'll really see the problems that we put in our brief to the supreme court. with that, i thank you all for coming, and i look forward to your comments and questions. [applause] >> all right. i think we'll now turn to questions from you for the next,

oh, 10, 15 minutes. i have three requirements. one is when you're recognized, leads announce who you are and your affiliation. the second is keep it short and sweet, and the third is end it with a question mark. with that, does anybody have any questions? yes, down here. >> hi. i'm andrew -- [inaudible] i'm here with the legal center at the heritage foundation. so you've identified three or a number of good things that came out of this case, you know, the law was upheld on the one hand, but you've got the public, you know, engagement, you've got blogs and things that are now engaged, and you've got a lot of good precedent. so my question is on the precedential value of the case, have you seen any district or circuit court opinions where -- and it might have been cited favorably or any of the good law that came out of the case? >> yes. one of the debates that occurred in the immediate aftermath of this case is whether the material in the court preponderances with respect to

the commerce clause, the mess and proper clause -- the necessary and proper clause is precedentially binding because -- [inaudible] upheld as a tax. the counterargument is that the chief justice's controlling opinion said that, in fact, this was part of a precedent, that he wouldn't even have gotten to the tax issue had he not previously ruled that this is invalid as to the commerce clause and necessary and proper clause, because that's what then led him to reinterpret the law so as to take -- make it constitutional. to make a long story short, there have been several district court decisions which do, in fact, treat those as binding precedent. there is one district court opinion that says, no, it's probably dictum. but on the whole, the lower courts are taking these parts of the decision seriously, so i think over time they will be seen as binding precedent though, obviously, as we discuss in the book, there are some points which are not fully

clear. there are like, for instance, the necessary and proper clause, it's not entirely clear how do we draw the line between a great and independent power. that's something the court will likely have to consider in future decisions. >> yeah. there's a very important implication of case which is so overwhelmingly accepted that i think it's not even discussed. and that is the way the law was upheld by chief justice robert is the the penalty to enforce what used to be an insurance requirement, it was so low and reasonable that it preserved the choice or option for people to pay the penalty or buy insurance. and that's the reason it was upheld. had this case been upheld as either the commerce necessary and proper clause or even the theory that the dissents on this issue on the supreme court had advocated, congress when that penalty turned out to be too low to actually get people to make the bad deal, to enter into the bad deal that obamacare is making them enter into by buying

insurance that's way over, vastly overpriced, when that penalty proves to be too low, had this law been upheld as a commerce clause regulation, congress would have been free to raise the penalty as high as they wanted to. they could have made it a criminal offense not to have insurance. they can't do that now. they cannot do that now. there's a supreme court precedent which says they can't do that now. because they said this is only being upheld as a tax because it's low. it's a fine only, and it's low only, and, oh, of course, maybe they could raise it a little bit. i'm not saying they couldn't do that, but they certainly can't treat in the way the drug laws are treated and send you to the penitentiary for doing something they don't want you to do. so that precedent, i don't think there's anybody now who would deny that if congress tried to do that, there would be a serious constitutional challenge and probably more than five votes to strike down such a law. >> the interesting thing, too, is the question of when they start raising the tax, which

they will have to in order to come watt the increasing price of insurance on one side because not enough healthy people are buying insurance. there's theoretically some constitutional heretofore not declared constitutional line where that becomes coercive. and it becomes the new baseline of the south dakota v. dole. because many that case, which is about state coercion, they said 5% of highway funds was not enough to coercion, and then they went to this medicaid expansion which was enough for coercion. we have the same question now with how much you have to charge a person before you're actually unconstitutionally coercing them. >> other questions? yes, down here. [inaudible] >> i'm jason miller, i'm a law student at catholic university, and i had a question. in your blog debates and in the previous discussions leading up to the case, did the religious freedom issues come up? for example, the contraception

mandate? >> i think -- they did, but they're not in the book really. [laughter] i focused the book on most of the commerce clause, the occasional taxing power debates. those are incredibly important issues. as we know, the court will be hearing that in march. that's, i make a comment on that in the introduction because we always have in this issue of it was just a situation of health care, we're supposed to be knuckle-dragging philistines who are standing against the tide of history as everyone moves to spaceships and star trek world and then this idea that that's what we're doing, whereas the civilized way apparently to do health care is to bring it all to to washington, have every single religious group create an organization to fight it out like a bunch of tribesmen beating each other over the heads with club. everyone needs an exemption. who needs an exemption from these things that are unconscionable as a matter of -- whether it's jehovah's witnesses

or people who like crystals, now you need a crystal lobbying organization. you still need one on k street to get exemptions from things you find unconscionable in the law. that, apparently, is progress. >> that debate, by the way, is ongoing now, and eugene volokh has weighed in on that -- >> 50 pages. [laughter] >> gerald sandler. do you think there'll be any spill beover from the worries about nasa and government spying and so on to this case? that is to say that are people getting more worried about extensive powers of government, and they don't want -- there'll be a pillover to where -- spillover to where they don't want the government to be able to control the health care? >> there has -- one thing that hasn't happened yet, and i don't know when it's going to and i hope it does soon, and that is the digital records, the medical digital records part of not just this law, but previous laws that didn't start with obamacare means that you're not going to have to -- the nsa is not going

to have to monitor all our cell phones and e-mails to figure out all the illnesses we have. it's all going to be digitized and within reach of them unencrypted. or not encrypted enough. so every illness you've got and every doctor you've seen and every shrink you may have talked to is going to be something the federal government has access to because of this mandated digitization of all our medical records. we haven't got there yet. the public has not focused on this. even the intelligentsia has not focused on this yet, but i think that the nsa surveillance issue once this other thing -- could very well spill over into this aspect of medical care. >> yeah. and one other thought. one thing that i think made the obamacare case unusual and remarkable and really gave it legs was the fact that it aligned so neatly along political dimensions. and randy was suggesting this when he was talking about how the broader role of politics

plays into this. and i think i would put it, you know, even more starkly. it became -- the idea that obamacare was unconstitutional became the republican position, right? it was just everybody who was a republican would speak that way, and as someone who looked at the precedents and said, wait a minute, i think they come out the other way, i had a lot of people say i didn't know you were a liberal. [laughter] i'm not. people look at me funny and say, well, that's strange. i didn't know you were a liberal. [laughter] if that were the case, there was very much of -- and this was part of a plan, it just didn't happen accidentally. it was very much part of a plan to make it a partisan issue so you would have, sort of open up possibilities for folks that other side might not have looked at it that way. and on issues like the nsa, there's still very much of a division in both political parties that keep that narrative from happening at least so far. >> and one little point, too, one parallel more than that is that my former colleague or former cato employee who writes

about police abuse issues, cops breaking into your house, has one of my favorite quotes from a libertarian standpoint which is libertarianism happens to you. you might not be a libertarian until the cops are breaking into your house. one of the things about these laws that we're seeing is that you can ignore government easier on a new little tax, a new little regulatory agency that's probably affecting businesses more than you, telling businesses what they can sell but not so much individuals if you're not in business. but the nsa's directly affecting individuals in a way that people are starting to realize, and the mandate is directly affecting individuals. and suddenly libertarianism is happening more than before. >> ilya shapiro from the cato institute. i want to ask a completely different question, not necessarily about the obamacare litigation, but how did this episode and the role of all conspiracy in it affect legal academia in the sense that, i

mean, it used to be that if you were blogging, not only was that a useless, waste of time, but it counted existence you, you're not a serious academic doing this. all of you are very successful. is this an anomaly? is this kind of now becoming part of, if you want to be at the, you know, highest superstar reaches, at least, you know, for a certain generation, you know, under 50 or something like that, under 40, whatever the case may be, that you do have to make an attempt to join one of these group blogs and, you know, somehow start affecting the debate both in the public and, you know, judges reading your blog and, you know, things like this? what kind of effect does this book, i guess, the highest example of it in this sort of thing change the way that law professors and, you know, the intellectual debate works? >> so i think there's been a change brewing on this for some time in that early on a lot of people said, especially early this my career, well, maybe it's not a good idea to blog because

be people always say you're not actually serious about your academic work if you're spending your time blogging. one level was student saying why is it any worse to blog than to fish, but people can see you're doing your work. when you go out fishing, unless the other law professors happen to be at that particular stream -- [laughter] and now i think you rarely see or hear it each though there's -- even though there is a debate about whether blogging itself can count as scholarship or not and, you know, you can argue about whether it can. i think actually most blogging is not scholarship. but even those like myself we don't believe blogging is somehow a substitute for scholarship, they will not longer argue that, wow, you're just sort of a waste of time, and it shows your unseriousness if you're an academic, because they recognize it's innuancing public debate and, only, there are prominent left-wing academics who also blog, most

notably at the balkanization web site which held down the other side of this debate during the aca litigation. so i think over time and this will happen even more in the future, legal academics and other kinds of academics recognize that blogging, even if it's not scholarship, is akin to other public activity that academics can engage in. i would argue having written many op eds that bogging is better because you're not so tightly constrained by the word counts and forms and other constraints that newspapers have whereas in the blogosphere it's much more flexible and happen much more quickly and much more efficiently. >> tweeting won't work. >> your blog posts count as scholarship. you're the master of the three-part blog post. [laughter] >> randy? >> there's a really important point to make on this subject, and that is that the reason why our blogging was as effective as it was and the reason why this book is such great book is

because we were all scholars in the field we were blogging about first. that is, we drew upon our scholarship and knowledge to make the more pithy, short form arguments that we were making on the blog. as did our adversaries on balkanization in other places. i mean, one of the sort of interesting juxtapositions is orin was not so much a scholar in the commerce clause and enumerated powers area as i had been and orrs had been, and he was kind of the protag nist, questions about what about this and what about that moving into the area on the nsa surveillance. orin is a scholar of the fourth be amendment. he's the real expert on that area. i am somewhat entrenching into his field as i raise questions about the constitutionality, the dubious constitutionality of the nsa bulk day collection rams. but i certainly know the difference between being a fourth amendment scholar and not dig being one. so -- not being one.

i do think it would be a big mistake the somehow our colleagues were to think blogging is scholarship. bloging is not scholarship, and it could be, i suppose, my colleague has legal theory blog. that almost amounts to scholarship, that does amount to scholarship, but that's totally unique. generally peek speaking, we are just utilizing the knowledge and expertise we have developed in real scholarship, and we're putting it to use. what blogging does allow us to do, though, is learn how to write better than we might have written in the long form law review articles. i couldn't get an op-ed place in the newspaper until i started blogging because i kept writing in this sort of, you know, inverted way that would not appeal to newspaper audiences. once i started blogging, i got a different voice, and then i was able to publish op-eds. so it does enable us to reach a larger audience if we develop the voice that allows us to do that. >> orin, you had something? >> yeah, i agree with randy. i would also say i think

blogging is still a somewhat unusual thing for academics to do. in some ways it's surprising to me that for the influence that blogs are having and for the profile that they have given the readership of them relative to law review articles, it's still a pretty small number of academics that are doing it on a regular basis. there's a decent percentage that, you know, maybe have their name on a group blog somewhere and once a year they might say something, but the number of people that are doing this on a regular basis is still really quite low. and given the hierarchy that i think legal academia tends to naturally favor, i think blogging has become a established part when i see the junior professors at harvard and stanford and yale naturally start blogging once they get hired. and i think we're very far away from that. >> last question from this very patient gentleman over here. >> well, much of the conversation has been -- >> please tell us who you are -- >> oh, i'm chris tomlin, and i'm

with the senate. but a lot of the conversation about the commerce clause, there was also some about medicaid and the court's power on the states. but there was another issue that kind of come up, and actually it was in the senate finance committee version, orrin hatch raised the issue of direct tax versus indirect tax. and, of course, roberts did address this somewhat this his decision although i don't feel like it takes it on really well. but hatch's was based off of an article that was in tax note which argued that it was a direct tax and then had to be abortion so, therefore, unconstitutional. did you guys look into that issue them, and do you think that maybe you should have raised that issue more with the court, maybe that would have been with roberts and -- >> well, good question. i mean, if in our briefs we did deal with the issue briefly because it was not an issue that we, that had been given wide attention by other judges, so we didn't think it was going to be

a major issue, but we did, in fact, address anytime the nlrb brief. not nlrp -- >> [inaudible] >> which i worked on. but we did raise it. and i agree with you that the treatment of this issue by the chief justice was highly cursory. and sort of an afterthought. and part of the reason was that a there was no oral argument on the issue, there was no adversarial briefing on the issue. you shouldn't be making law on an important legal question without the adversary working, so you generate good arguments on both sides and be able to test in oral argument. none of that happened because the it was a side issue that didn't go, that was never really raised. so it's another reason why i think what the chief justice did was a mistake. it was, actually, complained about, i think, by the dissenters. on that issue as to the fact that he reaches this issue without briefing and without full attention to it. and may, you know, maybe bad law to the extent his one opinion is law.

but it goes to another issue that i noticed that i think i said here in one of my blog posts, and that is when you learn as a litigator in court when you're a prosecutor in criminal court or whether you're doing constitutional adjudications, you cannot make a judge rule the way the judge does not want to rule by arguing against them a certain way. that is, if a judge really wants to reach a certain conclusion, there will always be reasonably decent arguments they can rely upon in order to reach that conclusion. so it's not a matter of, well, if we'd have just made one argument, we could have stopped chief justice roberts from doing what he was bound and determined to do for whatever reason, he was bound and determined to do it, it wouldn't have stopped him. it actually could have made things worse. we made bad law on this little tiny corner of tax law rather than making it in a much bigger way. maybe it would have forced him to really side with the dissenters on the big picture questions that we won on.

so, in fact, you can't think of a lawsuit that way. you can just make the arguments you can make and make it as costly as possible intellectually for a judge to rule against what you want them to rule, but you can't stop them from doing it. >> one comment on the tax thing generally, and that is it wasn't just this part of the tax argument that we somewhat underdeveloped, it was the entire thing because in the lower courts the tax argument was uniformly rejected not just by those judges who struck down obamacare or struck down the individual mandate, but by those judges who upheld it on other grounds. and if you look at the transfer of the supreme court oral argument, not just the conservative justices, but even the liberal ones expressed tremendous skepticism about the tax argument and arguing the case for the government, i don't think the solicitor general expected to win on this argument because on their brief it's relegated to the last three or four pages of an over 50-page brief. that's where you put sort of the throwaway arguments that you don't think are going to influence the court, but you

might as well make it anyway because you never know what might happen. so i always thought and most experts thought that this was by far the weakest of the three rationales that federal government offered for the law. so ultimately what happened is either chief justice roberts had sort of an idiosyncratic reaction where he was almost the only person or at least the only expert in this field who rejected the commerce and necessary and proper argument but bought the tax argument or as various press leaks suggest, he had a sort of political motive in that he thought this was he's to uphold the law are somehow to preserve his reputation and that of the court. and in his view, the tax argument was perhaps the least damaging way to do it because it was the least expansion of federal power beyond what where it had been previously. at this point we can't rule out either the idiosyncratic interpretation could have been the case or the sort of more political interpretation. but whatever the case may be, this came very much as a

surprise both to us and, i think, to most commentators that the tax argument would win whereas the other arguments which were much stronger ended up losing. >> well, this really terrific book is for sale in the lobby, so i hope some of you will avail yourself of the opportunity to purchase it. you won't regret it. and please join me in thanking the panelists. [applause] [inaudible conversations] >> you're watching booktv, nonfiction authors and books every weekend on c-span2.

>> gary younge is next on booktv. he examines martin luther king jr.'s "i have a dream" speech delivered during the march on washington on august 28, 1963. this is about an hour and a half. >> good evening. thank you so much for coming. we have a number of thank yous, a lot of people worked to put this program on. executive dean david scoby at the new school for public engagement, the nation institute, nation book and magazine, haymarket books, the the guardian all sort of really worked to make tonight possible. we, obviously, have a special thank you to all of you who came out tonight and all of the people who are watching this event. it's being live streamed, and it is also being taped by booktv for booktv and