By Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, Ilya Somin (auth.), Trevor Burrus (eds.)
The reasonable Care Act debate used to be some of the most vital and so much public examinations of the structure in our historical past. on the leading edge of that discuss have been the bloggers of the Volokh Conspiracy who, from ahead of the legislation used to be even handed, engaged in a lively, erudite, and obtainable dialogue of the criminal matters excited by the case.
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Additional info for A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case
Think about it. If the claim that this legislation was as clearly authorized by post– New Deal Commerce Clause doctrine as so many law professors seem to assume, then why almost immediately change the subject to the power of Congress to tax? This switch telegraphs a fundamental weakness of the Commerce Clause claim. THE LAW IS PASSED 39 The second development is the inability of supporters of the bill to generate any examples of when the Commerce Clause power has been exercised in the past to mandate individuals engage in economic activity by entering a contract with a private company.
One final thought: if, for some reason, we are not supposed to carefully consider what exactly the Supreme Court HAS said about the Commerce Clause power in its decisions—along with what it has NOT said in those decisions—and we are also not supposed to take seriously the independent meaning of the text of the Constitution itself, then ALL “constitutionality” means is a prediction of what the justices will do (sense three). And this would seem to be the epitome of the rule of men, as opposed to the rule of law.
22 A CONSPIRACY AGAINST OBAMACARE The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate Ilya Somin December 23, 2009 In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere.
A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case by Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, Ilya Somin (auth.), Trevor Burrus (eds.)