Legal Commentary

The New York Times Publishes My Letter Replying to Its Editorial

By Randy Barnett

The New York Times today published my letter responding to their editorial critical of my testimony before the Senate Judiciary Committee. The letter is here, and reads:

To the Editor:

Your Feb. 10 editorial ?A Debate Bigger Than Reform? criticized my testimony before the Senate Judiciary Committee on the unconstitutionality of the individual insurance mandate.

My testimony exclusively concerned why the individual mandate was outside existing Supreme Court doctrine, which limits Congress?s power under the commerce clause and the necessary and proper clause to regulating or prohibiting economic activity.

Current doctrine has never recognized a power to compel the citizenry at large to engage in economic activity, a power Congress has never before claimed. Therefore, nothing in my testimony would ?fundamentally weaken? or ?severely limit? the current powers of Congress.

Congress has many constitutional ways to address the market distortions that are inflating the costs of both health care and health insurance. And, although I would oppose such a program, existing doctrine would allow Congress to impose a ?single payer? tax-and-spending scheme like Medicare on everyone.

Randy E. Barnett
Washington, Feb. 12, 2011

I appreciate the Times willingness to publish my reply. Letters are supposed to be less than 150 words and the one I submitted ran about 165. The letters editor did a nice job editing mine without changing the content. I admire good editing.

Full post as published by The Volokh Conspiracy on February 18, 2011 (boomark / email).