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Monday, March 22, 2010

Randy Barnett and Health Care Constitutionality

Am I reading Randy Barnett correctly to say that the health care bill will be found constitutional unless the Supreme Court decides to act unconstitutionally itself?  Here's his conclusion:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won't be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won't go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

I know he says that the individual mandate violates the Commerce Clause, but even he has to recognize this is a minority opinion.  So he's holding out hope for Bush v. Gore II?  Yikes.

UPDATE: Orin Kerr says: 1%.

Posted by Matt Bodie on March 22, 2010 at 01:34 AM in Current Affairs | Permalink


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Who cares if it is a "minority opinion". That is the tragedy of America today. Supporting the forcing of the population to buy a product using the Commerce clause is a scam, simple but true - just not well liked by the Left. Only agenda-driven lawyers could come up with that crap after reading Article 1, section 8. That's why this country is being taken over by the radical Left: it has deconstructed the Constitution's language so that it means whatever these Lawyers with political agendas say it means. Give us Americans a break from this radicalism. Thank you.

Posted by: mbabbitt | Mar 31, 2010 10:44:25 PM

"regulating inactivity by compelling citizens to enter into a contract with a private company"

Prof. Balkin has done yeoman work underlining that there is no "inactivity" here; I also don't know why I can't be taxed to promote something Congress has power over and get a rebate if I help it along. I continue to find "mandate" misleading. Finally, where is this private company barrier? Did that work with vaccination? Not in 1905 or so.

This isn't just radical but specious reasoning. Are they making this stuff as they go along? Sounds harsh, but after awhile, come on. One person argue insurance isn't commerce. Why not just apply 19th Century free speech law too?

Posted by: Joe | Mar 22, 2010 4:11:30 PM

This is the very definition of something that falls under the Commerce Clause. Nobody's been able to show me any precedent that something dealing with multistate commerce doesn't fall under the Commerce Clause.

From Morrison:

The Court explained that in both Lopez and Morrison "the noneconomic, criminal nature of the conduct at issue was central to our decision."

Furthermore, the Court pointed out that in neither case was there an " 'express jurisdictional element which might limit its reach (to those instances that) have an explicit connection with or effect on interstate commerce.' " Id. at 1751.

In both cases, Congress criminalized activity that was not commercial in nature without including a jurisdictional element establishing the necessary connection between the criminalized activity and Interstate Commerce.


Now, it's possible that the Court could find some sort of economic privacy right that the mandate violates - but to my knowledge, we haven't seen anything like that since the Lochner era...

Posted by: Dman | Mar 22, 2010 3:39:35 PM

In person, he seemed amiable enough when I heard him discuss his book a few years back, fwiw. He's a true believer in a somewhat radical (if appealing in certain ways) constitutional view. This is fine, but he should realize the difference between "ideal" and reality.

Posted by: Joe | Mar 22, 2010 10:09:51 AM

Randy Barnett seems to be an angry man. I first got that impression from reading his "Restoring the Lost Constitution: The Presumption of Liberty" published in 2003, the title of which struck me as presumptuous. Then in 2005, the Supreme Court ruled (6-3) in Gonzales v. Raich against Barnett's client. Barnett seemed to respond angrily to this decision, especially with Justice Scalia's being in the majority. Barnett's WaPo Op-Ed also seemed to demonstrate anger on the part of Barnett, especially his reference to Bush v. Gore as a possible means of attacking the health care bill on constitutional grounds. Barnett's response to Jack Balkin's critique of this Op-Ed while attempting to be explanatory about his reference to Bush v. Gore demonstrates anger as well. Of course, Barnett can point to Heller as at least partially restoring the "Lost Constitution" and perhaps McDonald may further the restoration. But maybe not.

Posted by: Shag from Brookline | Mar 22, 2010 8:06:42 AM

Jack Balkin talks about the Barnett op-ed here:


and adds an update with an e-mail from Barnett stating that he was not holding out hope for Bush v. Gore II, just talking about predicting five votes.

Posted by: Howard Wasserman | Mar 22, 2010 1:50:58 AM

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