United Liberty

Over at the Washington Examiner, Philip Klein reports that two lawsuits challenging ObamaCare were heard before three judges appointed by Democratic presidents, including Barack Obama:

Here is a constitutional amendment I can get behind:

Proposed 28th Amendment to the United States Constitution:
“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States .”

In case you don’t remember, members of Congress and their staffers are exempt from the individual mandate requirements of ObamaCare.

Though I didn’t get around to writing about it, I like the idea of Randy Barnett’s “Repeal Amendment” proposal.

As you can imagine, there are a lot of opinions on the ruling issued yesterday by U.S. District Judge Henry Hudson finding essential provisions of ObamaCare, such as the individual mandate, to be unconstitutional.

The Obama Administation obviously voiced its disagreement with the decision in during Robert Gibbs daily meeting with the press and in this statement:

Today’s narrow ruling in Virginia on the constitutionality of a provision of the Affordable Care Act is just one of many recent rulings on similar cases that have come down in recent months.  Since the law passed, opponents of reform have filed more than 20 different legal challenges.   Judges have already granted the Administration’s motion to dismiss 12 of these cases.   And in two cases, federal judges looked at the merits of the opponents’ arguments, determined that the Affordable Care Act is constitutional and upheld the law.

We disagree with the ruling issued today in Virginia and the Department of Justice is considering its appeal options.

We are pleased that Judge Hudson agrees that implementation of the law will continue uninterrupted.   In the nine months since the health reform law was passed, we’ve made tremendous progress to strengthen our health care system, including lowering costs and implementing a new patient’s bill of rights to end some of the worst insurance company abuses. That work continues. And we’re confident that when it’s all said and done, the courts will find the Affordable Care Act constitutional.

Here’s the full video of Law Professor Randy Barnett giving the Sixth Annual Frederich von Hayek Lecture on the subject of the U.S. Constitution and the individual insurance mandate in Obamacare, 90 minutes long but well worth watching:

On Monday, U.S. District Judge Henry Hudson denied the Obama Administration’s motion to dismiss a challenge to the constitutionality of the health care reform brought forward by Virginia Attorney General Ken Cuccinelli.

Hudson’s opinion on the motion, which can be read here, gave us insight as to how courts may view the expansive view, even more so in previous cases, of the Commerce Clause:

Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

Hudson also wrote of the individual mandate:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate –and tax– a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Give the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this time stage that the Complaint fails to state a cause of action.

Randy Barnett, author of Restoring the Lost Constitution, recently talked with James Taranto of the Wall Street Journal about the constitutionality of the individual mandate, the centerpiece of ObamaCare, and the legal challenges working through federal court:

So would “any constitutional law professor” be right to scoff at the case against ObamaCare? Not according to this law professor. “The challenges to ObamaCare are serious legal challenges within the existing doctrinal framework,” Mr. Barnett says. “They are not an attempt to restore the lost Constitution.”

That’s why the “individual mandate”—the requirement that all Americans purchase medical insurance or pay a fine—has been the focus of the lawsuits by state attorneys general seeking to overturn ObamaCare. (Mr. Barnett wrote a friend-of-the-court brief with the Cato Institute, a libertarian think tank, in support of the Virginia attorney general’s lawsuit.)

As we noted yesterday, despite the fact that the American people were told constantly by Democrats that the individual mandate in health care “reform” law passed back in March was not a tax, the Obama Administration has now changed its tune.

Over at Cato at Liberty, Ilya Shapiro reacts to the news:

This is huge.  After months of arguing that cases like Wickard v. Filburn (Congress can regulate the wheat farmers grow for personal consumption) and Gonzales v. Raich (Congress can regulate personal growth of state-allowed medicinal marijuana) justify the requirement that every man, woman, and child buy a health insurance policy, government lawyers (and spokesmen) now say the mandate is just a regulation accompanying a lawful tax (the penalty you pay for not buying insurance).  After I spent most of April and May criss-crossing the country debating the constitutionality of Obamacare, it turns out that my opponents were barking up the wrong tree!

You have to wonder why the Obama Administration would run away from their argument consider the affinity the Supreme Court has for expanding government’s power under the Commerce Clause.

Randy Barnett points out:

The once discredited idea of nullification, the idea that the individual states have the authority to nullify Federal laws inconsistent with the Constitution, is making a comeback thanks largely to a new book entitled Nullification: How to Resist Federal Tyranny in the 21st Century by Thomas Woods. Today, over at The Volokh Conspiracy, law professor Randy Barnett casts a very skeptical eye on Woods’ argument:

While there are some interesting structural arguments to be made on behalf of a power of nullification, of course it is not recognized by the text. And my doubts that it was thought by the founders to be a power reserved to the states is fueled by James Madison’s famed Report of 1800 in which he defended the Virginia Resolution objecting to the constitutionality of the Aliens and Sedition Act. I include a lengthy excerpt from Madison’s report in my casebook, including this telling passage near the end. (So readers have the full context, I include the paragraphs in full while putting in bold the more crucial language):

Yesterday, a friend asked me to send along a list of books that I would recommend for a project. So, I figured I’d pass it along, in no particular order (please share books you recommend in the comments).