Legal Commentary

Testifying Today Before the House Judiciary Committee

By Randy Barnett

This morning at 9:30am, I am testifying before the House Judiciary Committee?s hearing on the constitutionality of the individual mandate. The other witnesses will be Virginia Attorney General Ken Cuccinelli, and former Solicitor General and Duke lawprof Walter Dellinger. I don?t know whether C*SPAN will cover these hearings, but I suspect that media interest in the Senate hearing was amped up because they were called by Senate Democrats to blunt the momentum of the constitutional challenges, and were held just two days after Judge Vinson?s decision invalidating the mandate. (A webcast might be available here though I do not see any link so this is doubtful).

An somewhat abbreviated version of my opening statement appears in today?s Washington Examiner: Obamacare?s individual mandate is a dangerous new federal power, and it begins like this:

Here?s a thought experiment. Imagine that I tell you 100 things that you may not do tomorrow. For example, you cannot run on a treadmill, eat broccoli, buy a car, and 97 other things. While your liberty would be restricted, there would still be an infinite number of things you may still do.

Now suppose I tell you 100 things that you must do tomorrow. You must run on a treadmill, eat broccoli, buy a car, and 97 other things. These 100 mandates could potentially occupy all your time and consume all your financial resources.

You can see why economic mandates such as the individual mandate in Obamacare are so much more onerous than either economic regulations or prohibitions, and why so dangerous an unwritten congressional power should not be implied.

You can read the rest here.

Full post as published by The Volokh Conspiracy on February 16, 2011 (boomark / email).