Randy Barnett on the Commerce Clause and the Individual Mandate
I was going to write a long, long post about the commerce clause and the individual mandate, but this video of Randy Barnett does the job a whole lot better. One thing I hadn’t quite appreciated was the degree of entanglement between the commerce clause and the necessary and proper clause — without the latter, it is indeed nonsensical to speak of modern commerce clause jurisprudence. Randy’s talk helps pick through the confusion (much better than my attempts here and there). Anyway, here’s the video, with a guide for the impatient below it:
13:22 — The tax power theory — that is, the claims of power stemming from the general welfare clause — have already been dismissed in court. There doesn’t seem to be much chance for them. The commerce clause is a much more difficult call.
39:57 — The distinction between activity and inactivity is fundamental in our law.
42:57 — Other forms of compelled individual activity, including military service, jury duty, and census responses, are all authorized by other provisions of the Constitution, not by the commerce clause. They each relate to the duties of citizens as citizens, not to a desired economic goal that Congress would like to achieve.
43:44 — If the decision not to engage in economic activity itself counts as economic activity, then everything counts as economic activity, and Congress has power to command any specific action at all. Under such a theory, we would no longer have a government of limited powers.
52:35 — A solid precedent exists for not commandeering state governments to do the federal government’s bidding. Commandeering individuals has not yet been directly addressed, but one can still easily make a case that mandates are different from regulations. One doesn’t often reach the Thirteenth Amendment, but this arguably would.
53:52 — Prohibitions, regulations, and mandates — the latter is a step beyond the other two. Other mandates, like draft registry, jury duty, tax returns are not imposed by Congress’s power to regulate economic behavior.
59:23 — On the novelty of the anti-commandeering doctrine. It is only new because Congress has never attempted to enact anything similar. No one imagined that we might have to articulate it.
1:00:29 – Adopting his argument would not result in dismantling the New Deal, but only in striking down the individual mandate. Nothing more.
Finally, here’s the paper the talk was based on.