Author Archive | Randy Barnett

Here’s another minimalist argument for invalidating the whole ACA:  there would then be no need to reach the Spending Power issues raised by the Medicaid challenge.  Either way the Court goes on that issue will be another big constitutional decision.  The lesser course is to strike down the ACA solely because the mandate is constitutional […]

Most attention has been devoted to whether or not the Supreme Court will invalidate the individual mandate, and how the legitimacy of the Court will be affected if it invalidates the Affordable Care Act.  Little has been said about the effect of severing the mandate from the rest of the law.  One implication of severance […]

Over on the Liberty Law Blog, Mike Rappaport has this thoughtful post on the left’s concerted push to threaten the legitimacy of a decision invalidating the entire Affordable Care Act: [Jeff Rosen’s] comparison with the New Deal is not well taken.  The Obama Administration and the health care law do not have anything like the […]

As a follow up to my previous post, I wish to comment briefly on Jeff Rosen’s revival of Cass Sunstein and his invention:  the Constitution-in-Exile Movement that seeks a return to the pre-1937 Supreme Court doctrine.  As my previous post makes clear, the challenge to the Affordable Care Act is in no way based on […]

If the Supreme Court invalidates the individual insurance mandate, it need not call into question any other law that has ever been passed in the history of the United States.  Why?  Because the Congress has never before exercised its Commerce Power to impose a requirement on the American people to enter into a contract with […]

There are so many reasons why drug prohibition is objectionable, it is hard to enumerate them all.  In my Utah Law Review article, The Harmful Side Effects of Drug Prohibition, I try to systematically survey just the “consequentialist” arguments against this socially-destructive social policy.    If I were to revise this article today, I suppose I […]

One of the crucial hallmarks of the so-called New Originalism is the recognition that there is a difference between two types of activities:  the activity of interpretation and the activity of construction.  Interpretation is the activity of ascertaining the semantic meaning of a text, including both its express and implied meanings, and taking into account […]

Among the arguments for more intellectual diversity among law school faculties is the simple obliviousness of most academics to how a third to a half of their students think, not to mention a significant portion of the general public.  This is illustrated in Jared Goldstein’s post this morning on Balkinization, Broccoli and the Conservative Imagination, in […]

Matt Welch has a nice essay on Reason.com, Why Big Government Is Offensive: The faster the state expands, the more likely it is to violate your values.  It is not a new point, but is well made and deserves to be reiterated often:  the more government does, the more it offends basic values.   Up first for […]

This new Quinnipac study of swing state voters in Florida, Ohio and Pennsylvania shows the Democratic Party slightly more popular than the Republican Party (and President Obama opening a 47% – 39% lead over Mitt Romney in Pennsylvania): 4. Is your opinion of the Republican Party favorable, unfavorable or haven’t you heard enough about it? […]

I am a million mile flier on United Airlines — that’s actual miles flown, without any bonuses — but lately have been disenchanted with the airline’s treatment of its frequent fliers.  But I have no beef like musician Dave Caroll’s (from this website): Musician Dave Carroll had difficulty with United Airlines. United’s baggage handlers damaged […]

I just read the blog post by Michael Greve to which David linked below in which Michael describes the Yale Law School conference on Jack Balkin’s marvelous new book, Living Originalism: It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to […]

I am a big fan of Michael Greve, and consider his new book, The Upside-Down Constitution, to be a major contribution to the theory of federalism. It’s a serious critique of the post-New Deal Supreme Court federalism doctrines of the both the liberal and conservative justices.

I don’t think so, but you decide:

A few weeks ago, the Harvard Federalists invited me to be interviewed by Dean Martha Minow in the Ames Moot Court Room.  She was wonderful, though the interview turned out to be far more substantive than I anticipated.  She really put me through my paces.  Now the HLS website has posted a video of the […]