Is the Individual Mandate Unconstitutional Under Existing Supreme Court Precedent?

Georgetown University law professor Randy Barnett argues yes in a forthcoming NYU Journal of Law and Liberty article he just posted to SSRN. From the abstract:

The "Patient Protection and Affordable Care Act" includes what is called an "individual responsibility requirement" or mandate that all persons buy health insurance from a private company and a separate "penalty" enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power.

Download it here.

Comments

[Spencer Smith]

Sounds good.

[Mr. FIFY]

Is the Individual Mandate Unconstitutional, Period?

There, that's much better.

[Nancy Pelosi]

Is the Individual Mandate Unconstitutional Under Existing Supreme Court Precedent?

Is there a serious question from the room?

[Barely Suppressed Rage]

Yes, I have one: why are you such a useless bitch?

[Rep. James Clyburn]

That's about as useless a read as the Constitution.

[Chemerinsky, Tribe, Fried]

Living Constitution!

[doomboy]

Well he was right about Raich. Wrong about the SCOTUS part though. YMMV.

[doomboy]

What does the constitution have to say about group mandates, like watching football games at a sportsbar?

[Congress]

Well, when the Congress does it that means that it is not unconstitutional.

[CrackertyAssCracker]

Existing precedent is "insterstate general welfare commerce". Let me translate from legalese to English: "we can do whatever the fuck we want to do". So yes, under current precedent individual manadate is fine.

[AlmightyJB]

exactly

[Silentz]

In other constitutional news, the Obama administration is asking the court to overturn a ruling that requires officials to get a warrant to put a GPS tracking device on your car. Apparently they posit that you don't have a reasonable expectation to privacy in a public place.

http://www.wired.com/threatlev.....z10GwocAiu

Does this mean the Feds think it's okay to video tape a police officer in a public place?

I'd like to see the Police lobby come out in favor of this GPS ruling so we can shove it right back at them on the video issue.

[TrickyVic]

http://reason.com/blog/2007/02.....e-fourth-a

[Hacha Cha]

Involuntary health care!
Rogers v. Okin
Rennie v. Klein
If we have the right to refuse treatment, then we have the right to refuse buying health insurance!

[Hacha Cha]

O'Connor v. Donaldson

[Tim]

Obama Wan Kenobi: If you strike me down, I shall become more powerful than you can imagine.