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.