Barnett on the Supreme Court on the Individual Mandate

While my fellow Pilei debate the role that moderate Republicans can play in a future return to fiscal sobriety, libertarian law prof Randy Barnett considers whether, with respect to the PPACA, it even matters. What are the chances that the Supreme Court strikes down the individual mandate, including potentially the entire bill, which lacks a severability clause? Barnett argues that the individual mandate contradicts existing Supreme Court thinking on the “necessary and proper” clause, and that the mandate represents a legally unprecedented “commandeering of the people” by the federal government. If the health care bill remains unpopular by the time the case reaches the Supreme Court, he muses, there may well be five votes to strike it down.

HT: Hit & Run.

2 thoughts on “Barnett on the Supreme Court on the Individual Mandate

  1. So, the Supreme Court would rule, in effect, that only a fully socialized system, backed by broad-based (e.g. VAT) taxes would be Constitutional? Because they’re not going to provide a precedent to be used to strike down Medicare. Be careful what you wish for.

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