Author Archive | Randy Barnett

C*SPAN has posted the video of my debate on the constitutionality of the Affordable Care Act with Stanford law professor Pam Karlan.  The debate was held at the Federalist Society National Student Symposium held on March 2d at Stanford Law School.     I don’t see how you can embed the video, so you have […]

University of Virginia legal historian Barry Cushman has a very interesting short essay forthcoming in the Green Bag comparing the bipartisan support enjoyed by New Deal legislation as compared with such measures as the Affordable Care Act. This the most startling of his findings: It is widely recognized that support for the major bills enacted […]

There has been a lot of chatter lately about how Justice Scalia’s concurring opinion in Raich somehow binds him to rule for the government in the challenge to the ACA. As the lawyer for Angel Raich, I admit to being disappointed by the outcome of the case, by Justice Scalia’s vote, and by his opinion. But […]

Many polls have shown that the Affordable Care Act remains unpopular.  (One example is here.)  Now comes a USA Today/Gallup poll showing that nearly three quarters of Americans, including 56% of Democrats and 54% of those who think “the healthcare law is a good thing,” believe the individual mandate to be unconstitutional.  Here is how […]

In Marbury v. Madison, John Marshall wrote: The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed […]

Much of the difference of opinion over the constitutionality of the individual insurance mandate turns on a difference of opinion about the appropriate baseline for evaluating Congressional power. For 60 years, law professors taught that Congress had unlimited discretion with respect to using its commerce power to regulate the national economy. They held this view […]

Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that “the people” enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr.  Here is an excerpt: I believe Professor Barnett has the right of it, but I do […]

In his thoughtful post, Orin says he would support striking down the individual insurane mandate on federalism grounds if the Supreme Court provided a “genuinely principled or workable doctrine to justify” its decision. “[I]f we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, […]

I, for one, think Orin’s post below on Golan v. Holder is pretty funny. The Pacific Legal Foundation’s Tim Sandefur, however, is not amused and offers a substantive response here.

With 4 distinct questions being separately briefed and argued — and amici appointed to argue two of the questions apart from the petitioner or respondent — it is a real challenge to keep all the relevant dates in the proceedings straight. For those who are following the case, here is the timetable between now and […]

Stanford contracts professor Richard Craswell conceived, wrote and performed these amazing songs about six of the most famous and memorable cases in contract law. I laughed out loud at the first one, but they all are simply brilliant. If, that is, you took first year Contracts. UPDATE: By the time I had listened to all […]

I recently finished reading Pauline Maier’s marvelous book, Ratification: The People Debate the Constitution, 1787-1788. Maier, a historian at MIT, has written the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 […]

Gigi Garner, the daughter of James Garner, sent me this nice email reply to my post Remembering Maverick: The Garner Files: A Memoir about her dad’s new book, (which I post here with her permission): Hey Randy, Wow! What a nice unexpected surprise! I am so used to promoting everybody else, it is a shock […]

I have made no secret that I was a “child of TV.” And one of my earliest and fondest memories was staying up to watch Maverick with my dad. When I was a bit older, my brother and I would play Maverick. We would wear our white jeans and the jackets from our black suits. […]