The Constitutionality of the Individual Mandate 1-7-11

This luncheon debate took place on January 7, 2011, at the Federalist Society's 13th Annual Faculty Conference in San Francisco.


Friday, January 7, 2011
12:15 p.m. - 2:15 p.m.
Location: Paris South

Luncheon Debate: The Constitutionality of the Individual Mandate

--Prof. Randy E. Barnett, Georgetown University Law Center
--Prof. Orin S. Kerr, The George Washington University Law School
--Moderator: Prof. Steven G. Calabresi, Northwestern University School of Law

Hotel Monaco San Francisco
San Francisco, CA

Category:

News & Politics

Tags:

• federalist
• judiciary
• law
• supreme
• court
• conservative
• libertarian
• public
• policy
• constitution
• health
• care
• individual
• mandate
• commerce
• clause
• healthcare
• Obamacare

[bruceddot]

MikeDrewTT - I'm certainly no Barnett by any stretch. But, it's my understanding that the taxing power has a political check on it because a tax (ideally) applies to all. Because more people have a dog in the fight, the bark is a little louder when Congress tries to implement regulation through tax. On the contrary, regulating through commerce has much less of an impact on everyone. It typically regulates few citizens (wheat farmers wanting to grow more than 26a of wheat, medicinal marijuana co

[MikeDrewYT]

"There is no case that directly says: you can do this."???

As if it's beyond possibility that there was something Congress hadn't yet done that was nevertheless is justified by existing doctrine? Congrats to Barnett on his success in convincing them that on this matter it wasn't so clear, but as a general matter that demonstrates that there is no presumption that because the court hasn't blessed a particular action before, that existing doctrine doesn't extend to it.

[MikeDrewYT]

Question to Randy Barnett - How is the taxing power limited by politics in a way that the question of what is necessary and proper for carrying into Execution the power to regulate interstate commerce not?

[traditionbites316]

I would say the commerce clause was more to regulate (and defacto create) a common market between the states. This includes restrictions on import/export taxes between the states and other interstate barriers to commerce. It was to open and expand commerce, not restrict or place damning regulations on individuals.

[Dummfixer]

It seems to me to be grossly premature to be considering the law in terms of the "necessary and proper" clause before it can even pass the legitimacy test of the commerce clause. If strictly applied, does not the commerce clause have to do with dealings between the states. It never was intended to apply to individuals.