Randy Barnett looks at the radicalism of the legal theory invoked to defend Obamacare. Barnett admits that he himself adheres to a particularly narrow view of the scope of federal powers and particularly broad view of the Ninth and Tenth Amendments, but as he points out, even if you don’t buy his vision of the Constitution, the counter-argument would all but eliminate the existing limits on Congress’ enumerated powers. Key excerpt:
[W]e are all looking at the law as it currently exists and observing that the Supreme Court has never upheld the use of the commerce power to mandate that everyone engage in economic activity. All it has ever done is regulate or prohibit those who choose to engage in economic activity. As such there is no existing authority for extending the Commerce Clause this far.
This is an entirely conventional legal argument….[T]he claim that this power is unprecedented is demonstrably true. If the commerce power had ever been used like this before, these lawprofs would have been able to produce an example….
[Y]ou want to know another claim that is unprecedented? The claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS. I do not know who first came up with this theory, but whoever it was was pushing the envelope of federal power beyond anywhere it had ever gone. The Tax power has never been used to impose a mandate on the American people and the Supreme Court has never recognized such a power.
So I will make this prediction: If five justice vote to uphold the individual mandate, they won’t use the Tax power theory because (a) its implications are just too radical and (b) there is zero public support for such a constitutional proposition.
Read the whole thing.