Legal Commentary

Speaking at Stanford on Monday

By Randy Barnett

On Monday, May 3d, I will be speaking on Why the Individual Health Insurance Mandate is Unprecedented and Unconstitutional at Stanford Law School. The talk is from 12:45?2:00pm in room 190. The event is open to the public and details are here. Of course, a portion of my speech will concern the analysis I presented yesterday in The Wall Street Journal. I might add that the editors always choose the titles, not the authors. I think ?Health Insurance Mandate in Peril? has a nice ring about it. But the last sentence of the kicker, ?First Congress said it was a regulation of commerce. Now it?s supposed to be a tax. Neither claim will survive Supreme Court scrutiny,? goes beyond anything I predict in my piece, which ends like this:

Are there now five justices willing to expand the commerce and tax powers of Congress where they have never gone before? Will the Court empower Congress to mandate any activity on the theory that a ?decision? not to act somehow affects interstate commerce? Will the Court accept that Congress has the power to mandate any activity so long as it is included in the Internal Revenue Code and the IRS does the enforcing?

Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.

UPDATE: Turns out the wording ?Neither claim will survive scrutiny? was an error that did not appear in the print edition, and that was corrected today on line. The correct version reads:

First Congress said it was a regulation of commerce. Now it?s supposed to be a tax. Neither claim may survive Supreme Court scrutiny.

Full post as published by The Volokh Conspiracy on April 30, 2010 (boomark / email).