A Few Thoughts on Commerce Clause, Individual Mandate and Prof. Barnett

Written By: Deprecated User

I read an article last night on the Reason Magazine website and thought it presented an interesting perspective to ponder as we await the upcoming Supreme Court decision on Obamacare. Here is the article:


Briefly, I believe the individual mandate section should be deemed unconstitutional in violation of the Commerce Clause of the Constitution. I also believe that a federal law forcing people to enter into a contract without consent raises a very troubling and dangerous legal precedent.

For the record, since law school, I have believed that Congress has misused the Commerce Clause to legislate where it had no jurisdiction in an effort to increase federal power and grow the federal government. Unfortunately, Congress has been granted a free pass from the Supreme Court, which not only allowed these constitutional abuses, but actually made it worse by sanctioning the violations in a few remarkable decisions starting with Wickard v. Filburn in 1942 (you can find a summary of this mistake at http://www.lawnix.com/cases/wickard-filburn.html). In Wickard v. Filburn, the Supreme Court actually ruled that Congress had the power under the Commerce Clause to regulate how much wheat a farmer could grow for personal use on his own property. I am hoping this decision is expressly overturned in my lifetime.

I have become greatly impressed with and supportive of the writings of Georgetown law professor Randy Barnett on the Commerce Clause. I recognize that our shared viewpoint on the Commerce Clause may not be popular with the legal intelligentsia and liberal law professors, but that does not mean we are wrong and do believe this debate is turning in our direction since U.S. v Lopez in 1995 and U.S. v Morrison in 2000. Here are some excellent links to Prof. Barnett’s work:

His 2011 testimony before Senate Judiciary Committee, which every American should watch to better understand the individual mandate debate in a less partisan way: http://www.cato.org/multimedia/video-highlights/randy-e-barnett-testifies-senate-judiciary-committee-hearing-obamacare-cspan
His 2010 post on my favorite legal blog, The Volokh Conspiracy: http://www.volokh.com/2010/07/18/so-much-for-frivolous-commerce-clause-challenge-to-individual-mandate/
His 2010 Wall Street Journal Op-Ed against individual mandate: http://online.wsj.com/article/SB10001424052748704446704575206502199257916.html
A recent New York Times article about him: http://www.nytimes.com/2012/03/27/us/randy-barnetts-pet-cause-end-of-health-law-hits-supreme-court.html
His excellent 2001 University of Chicago Law Review article on the original meaning of the Commerce Clause: http://www.bu.edu/rbarnett/Original.htm

Jim Maisano 75pxJames Maisano, Esq. is a practicing attorney who also serves on the Westchester Board of Legislators. Check out Jim’s website at www.JamesMaisanoEsq.com, and you can also find this post on his Legal Blog (please see disclaimer on the Legal Blog). Jim’s law office can be contacted at Jim@JamesMaisanoEsq.com or (914) 636-1621