Author Archive | Randy Barnett

My friend, Harvard law professor Einer Elhauge, has an essay in the New Republic, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, in which he breathlessly recycles the same two supposed precedents for economic mandates under the Commerce Clause that have been much discussed over the past two years.  The first […]

Some may wonder why I am posting here and here on how the mandate was not actually designed to address cost shifting by the young and uninsured people , but was instead designed to make them pay — over and above any actuarial risk they pose to the insured — to lower the “insurance” premiums […]

One of the myths of the Affordable Care Act is that it designed to address the costs imposed on the health care system by uninsured healthy younger people who may incur unexpectedly high medical costs from, say, being hit by a bus, and who then shift these costs to those who have insurance.  As I […]

On Thursday, April 12th, I will be appearing at Harvard Law School to review the oral arguments in the Affordable Care Act challenge.  The event will be held at noon in the Ames Moot Court room in Austin Hall.  I will be interviewed by Harvard Law School Dean Martha Minow.   The Ames Moot Courtroom […]

Even after reading Orin’s thoughtful post on the various meanings of “judicial activism,” I still believe the term is unhelpful.  Or rather, it is too helpful to those who would criticize a judicial decision with which they disagree without assuming the burden of explaining what that decision is legally defective.  In short, “judicial activism” is a […]

That’s the headline from Rasmussen for this poll: Just before the highly publicized hearing on the constitutionality of President Obama’s health care law, ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports. Now, following the hearings, approval of the court is way up. Forty-one percent (41%) of Likely U.S. […]

You might want to try my latest book: The Oxford Introductions to U.S. Law: Contracts.  Here is the publisher’s description: Written by a leading expert in the field, The Oxford Introductions to U.S. Law: Contracts provides students with ready access to the basic doctrines of contract law, the story behind their evolution, and the rationales for their […]

I have noticed a tendency of some commentators (such as Larry Tribe) to discount the gross inaccuracy of President Obama’s remarks on Monday concerning judicial review, by pointing to the substantially revised views he expressed on Tuesday.  On the NewsHour, my colleague and friend Mike Seidman went so far as to insist that the President’s […]

My Georgetown colleague and good friend Mike Seidman and I both appeared on the NewsHour tonight to discuss the politicization of any ruling by the Supreme Court invalidating the Affordable Care Act.  As you might expect, there was much to disagree about.  You can watch it here:   Watch SCOTUS v. POTUS: The Role of […]

As a result of the President’s statements on judicial review on Monday and Tuesday, some have wondered how sophisticated a law professor he was.   With this in mind, I thought I would repost a comment I contributed to the New York Times blog, The Caucus, which solicited my and other law professors’ reactions to […]

Yesterday, Dave Hoffman at Concurring Opinions characterized my cobloggers and me as  “engaging in victory lap devoted to the proposition ‘We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are particularly close-minded.’”  I do not thing that “victory lap” is a fair characterization for […]

First, Northwestern law professor Andrew Koppelman publishes a paper entitled Why Jack Balkin is Disgusting, simply because Balkin has embraced originalism, which Koppelman finds revolting.  Then, on Salon, he describes the constitutional arguments seemingly being accepted by the Justices on Tuesday to be “silly.”   Now this.  Seriously?

As most experts and commentators have observed, Justice Kennedy and the other  more conservative Justices all strongly suggested during oral argument that the mandate was unprecedented and unbounded (and thus likely unconstitutional).   Orin and some others, however, have highlighted a few questions by Justice Kennedy concerning “actuarial risk” that seem favorable to the government.  (Indeed, […]

Just in case you have not grown tired of hearing me explain why the individual mandate is unconstitutional, you can listen to my presentation yesterday at the Cato Institute, which was broadcast live on C*SPAN.  My talk starts at the 20:00 minute mark Then there is a 6 minute interview with me on the Cato […]

Lots has been said recently about how the “conservative” justices would have to abandon their previous decisions in order to invalidate the individual insurance mandate.  As this flurry of punditry cannot hope at this late stage to influence the Justices, and is also demonstrably inaccurate — which no one knows better than the Justices themselves […]