Author Archive | Randy Barnett

Before Facebook, I used to blog more on entertainment I recommend than I have in recent years.  Given that is summer, I thought it might be OK to do it again.  There is a relatively unheralded program on Cinemax that I very much enjoy.  “Strike Back” is action series with an unusual combination of British production values […]

To uphold the Affordable Care Act, Chief Justice Roberts adopted a “saving construction” in which he deleted the “requirement” that all non-exempt Americans buy health insurance, leaving only the “penalty,” which he then recharacterized as a tax.  The next day, in my Washington Examiner essay, Roberts decision didn’t open floodgates for ‘compulsion through taxation’, I contended […]

Since its founding in the 1970s, Reason Magazine has featured “The Reason Interview” with all the major libertarian figures, from Hayek to Nozick to Rothbard.  (Reason should make all these interviews available online, but only a fraction of its archives are accessible.)  Since I started reading the magazine way back in college, I have been hoping […]

I am prepared to believe Jonathan’s report that John Roberts has done this before.  No doubt.  But that does not making his bending himself into a pretzel to uphold a law when the screws were put to him any less political.  This opinion should be studied for years to come  as lesson of how a […]

While I am reprinting old posts, I thought I would repost this from May, a month before the decision (bold added): Another Switch in Time? Randy Barnett • May 23, 2012 4:54 pm Jennifer Rubin and Kathleen Parker’s columns today have made me think of another Justice Roberts:  Justice Owen Roberts, who is famous for having […]

Here is the podcast I made at Cato immediately after the program I link to in my previous post:

Here is my speech at the Cato on Monday, where I ask whether the decision last week might be the prelude to our 1937. (My talk starts at 3:50 and ends around 18:00.  I have much to say about the tax power after the others speak.) When I refer to 1935, I as actually referring to […]

Oh wait, that’s me.  I was noodling around on the Cato website looking for the video of my talk there on Monday when I came across this statement from March 31, 2010: On ObamaCare, Don’t Put Your Faith in the Courts Posted by Randy E. Barnett Now that the Obama health plan is law, more than […]

Imagine that drug laws were enacted under Justice Roberts’ limited reading of the tax power rather than under the Commerce Clause as now?  What would be different about such a world than ours?

The other evening, my daughter made a very astute point about why the lawsuit challenging Obamacare was largely successful:  Imagine that Congress enacted the “Individual Responsibility Requirement” and called the penalty for noncompliance a “tax.”   What would have happened?  I think I know. Although I believe this would have been in conflict with tax […]

Throughout the Obamacare litigation, I freely conceded that Congress could use its tax powers to create incentives to buy health insurance, and even enact a “single payer” Medicare for everyone scheme.  But I never accepted the claim made by Obamacare proponents  that all Congress needed to do was call the mandate a “tax” (from which […]

In my previous post, I explained how no one other than Chief Justice Roberts ever held the legal position that he came, for whatever reason, to hold.  Some may respond, “Hold on”:  Many law professors like Jack Balkin claimed loudly that the individual mandate was a tax. True. But that is not what Justice Roberts […]

I have been out of town and not keeping up with all the chatter about the news that Chief Justice Roberts changed his vote after conference from invalidating the ACA, at least in part, to a vote to uphold it. The obvious question arises: was this switch motivated by legal considerations, or by the sort […]

Today marks the 160th anniversary of one of Frederick Douglass’s most moving speeches, “What July 4th Means to the Negro.”  Unlike the Garrisonian abolitionists from whom he broke, Douglass rejected the proslavery reading of the Constitution, and adopted Lysander Spooner’s antislavery reading itself.  He maintained that the failure of the Constitution to reference “slavery” by […]

[From the next edition of my casebook, Constitutional Law: Cases in Context:] When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown and every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration […]