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Randy Barnett’s Vindication



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The New York Times has an interesting piece today entitled “Vindication for Challenger of Health Care Law,” about esteemed libertarian lawyer and law professor Randy Barnett (disclosure: I have know Randy Barnett for years and consider him a friend). The article explains how Barnett almost self-handily has brought to light the argument of the unconstitutionality of the Obama’s health-care law. The authors credit him with putting the question on the agenda of the United States Supreme Court today.

What’s interesting is that while the right and the libertarians freely admit that we don’t know how the Court will rule, the left doesn’t have much doubts about the constitutionality of the mandate. Here is an example from the piece:

“He [Barnett]’s gotten an amazing amount of attention for an argument that he created out of whole cloth,” said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. “Under existing case law this is a very easy case; this is obviously constitutional. I think he’s going to lose eight to one.”

#more#Others seem to think that the question’s a no-brainer because Democrats aren’t expending much energy defending it:

That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects.

I am not a lawyer and I wouldn’t dare making any predictions about what the Court will decide (I have absolutely no clue), but I wouldn’t dismiss Barnett so fast. The New York Times writes:

He is a fierce advocate of economic freedom who is accustomed to being a legal underdog. In 2004, in his first (and, he says, probably his last) appearance before the Supreme Court, he argued that Congress could not criminalize the production of home-grown marijuana for personal medical use. There again, critics said he would lose 8 to 1. He did lose, but took satisfaction in the actual vote, 6 to 3.

And as professor Eugene Volokh explains:

“What Randy has done is provide an intellectual and legal framework for explaining why this is not just unpopular, but also unconstitutional,” said Eugene Volokh, a law professor at the University of California, Los Angeles, and founder of a legal blog to which Professor Barnett sometimes contributes. “You can accept or not that framework, but it is a framework that is out there that is being taken seriously in part because it was proposed by a serious guy.”

The article concludes:

Even a close friend and fellow Georgetown law professor, Lawrence B. Solum, says that Professor Barnett is aware of the “big divide between his views and the views of lots of other people,” and that his political philosophy is “much more radical” than his legal argument in the health care case. Professor Barnett, for his part, insists that if the health law is struck down, it will not “threaten the foundation of the New Deal.” But, he allowed, it would be “a huge symbolic victory for limited government.”

The whole thing is here. There are a few things to read this morning on the issue from the great Avik Roy here and here. He is also live-blogging with other experts at NRO here. Also, Peter Suderman over at Reason Online is always worth reading here and so is Phil Klein of the Examiner here. This piece by Conn Carroll is interesting too, as is the Washington Post’s Ezra Klein’s opinion of what “you need to know about the individual mandate.”

By the way, as I finish this post the WSJ sends this alert:

Supreme Court Justice Anthony Kennedy said the U.S. government has a “very heavy burden of justification” to show where the Constitution authorizes the Congress to change the relation of individuals to the government. His comments came as the high court tackled the central issue in the challenge to the Obama administration’s health-care law — whether Congress could require individuals to carry health insurance or pay a penalty.

Solicitor General Donald Verrilli, in defending the law, argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product. Justice Kennedy asked what limits, if any, there would be to government powers under his argument. Justices Ruth Bader Ginsburg and Stephen Breyer weighed in repeatedly to further Verrilli’s argument, and to counter skeptical remarks made by Justices Antonin Scalia and Samuel Alito.



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