December 10, 2009

Randy Barnett and Eugene Volokh on the constitutionality of the health care mandate.

This video, which goes for over an hour, begins with former Attorney General Ed Meese introducing Senator Orrin Hatch and Orrin Hatch introducing the professors:

[CLICK FOR VIDEO.]

ADDED: I apologize for spelling Randy's last name wrong. Corrected now. If there is any fixed star in our constitutional orthography, it's that there is no "e" on the end of Randy's last name. (And I need to finish writing my Religion and the Constitution exam.)

18 comments:

mccullough said...

I believe he spells it Barnett.

These double-intros remind me of Oscar night when the host introduces someone who introduces the nominees.

Joan said...

I am very interested in this topic but carving out over an hour to sit and watch a video on the computer? I'm hoping there will be a transcript.

chickenlittle said...

I second what Joan says

EDH said...

If ruled unconstitutional, would citizens of states that enforce a mandate, like Massachusetts, be able to sue the state, state actors or non-state actors under the state's own civil rights law?

Before doing the actual research, beside sovereign immunity my gut tells me that under the case law enforcement of a statute by state actors, even if the statute is later ruled uncostitutional, is unlikely to be deemed to be intereference with civil rights by means of "threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion" -- ironically, even though in fact the mandate is enforced by means of "threat, intimidation or coercision."

Chapter 12: Section 11I. Violations of constitutional rights; civil actions by aggrieved persons; costs and fees

Section 11I. Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H [see below], may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.

Chapter 12: Section 11H. Violations of constitutional rights; civil actions by attorney general; venue

Section 11H. Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. Said civil action shall be brought in the name of the commonwealth and shall be instituted either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the person whose conduct complained of resides or has his principal place of business.

Lem said...

Rush said under the US constitution the federal goverment cannot compel a citizen to buy anything ..in a nutshell

Ann Althouse said...

mccullough said... "I believe he spells it Barnett."

Yes. I know. I'm sorry. Fixed.

Sofa King said...

The idea that the Constitution actually prevents the government from doing anything is quaint. The Constitution protects the government from the People, not the other way around.

knox said...

I still haven't got over Kelo. Seems to me they can do whatever they want.

EDH said...

Notice in today's Boston Globe, the mandate is said to be enforced by a "penalty," not the forfeiture of a tax exemption/deduction.

One reason I suppose is that the loss of an exemption/deduction is only effective if the person "penalized" is a net income tax payer, which is probably not the case in many instances where the mandate is enforced.

Pogo said...

Yeah, this is pointless now.

The gummint can do whatever the hell it has a mind to. The Constitutionality of it will be cobbled together somehow, but really, it's just a formality, and who gives a shit how they do it anyway, because it's done.

The Constitution is really most sincerely dead.

EDH said...

Arrrrgggg! On second look, I should have thought through my initial reaction more. It's so basic too.

Even if FEDERAL government doesn't have the constitutional authority to mandate coverage on all citizens, the states may not face a similar FEDERAL constitutional bar due to their much more general police powers.

Just because a federal statute is unconstitutional does not mean a state statute that does the same thing is also unconstitutional under either the federal or the state consitution.

Mia culpa.

miller said...

The Constitution is only in effect for favored causes. Emotion triumphs law.

We might as well simply give up now.

EDH said...

Or Mea culpa - that too!

Sorry, the it's the snow that's distracting me:)

Joe said...

Wow, I generally like Eugene's Volokh's writings and his comments on TV, but I thought he made an extremely poor argument here.

It seems that Volokh's argument is that since the core regulatory scheme is constitutional, therefore whatever is done in support of that is defacto constitutional as long as you can claim it is necessary and proper. I find that completely absurd. If this were to be true, Congress could do anything they pleased.

Quayle said...

Here is a question for your Religion and the Law exam:

"Which Althouse commenter's great uncle is Appellant in one of the key cases associated with and following Reynolds v. U.S., and what is the name of the Appellant?"

Tell me if you need a hint.

Nick said...

Joe:

I get the impression that he finds it absurd, too.

Pogo's comment seems instructive re: Volokh's take on this issue.

Balfegor said...

It seems that Volokh's argument is that since the core regulatory scheme is constitutional, therefore whatever is done in support of that is defacto constitutional as long as you can claim it is necessary and proper. I find that completely absurd. If this were to be true, Congress could do anything they pleased.

Really? Do not have 1 hr to spare, so I will trust your summary.

I have no doubt that the mandate is Constitutional, but that's because I think the mandate is exactly what the draft legislation calls it -- a tax on income, that's excused if you get healthcare. And Congress has a virtually unrestricted power to tax and to destroy for all kinds of bizarre policy purposes, e.g. with the mortgage interest deduction, or the funny treatment (even today) of health insurance purchased by employers for their employees.

Is there some other draft legislation where the mandate really does directly force people to buy healthcare, the way Obama and his most vociferous critics apparently believe?

Or is Volokh arguing that the tax is only Constitutional if it is incidental to a Constitutionally permissible core regulatory scheme? Which I could get behind, although he draws Congress's powers more narrowly than I think they actually extend in practice.

Mark said...

For detailed defenses of the legislation's constitutionality, see these posts:

http://oneillhealthreform.wordpress.com/tag/constitution/

http://www.healthreformwatch.com/2009/08/25/is-it-unconstitutional-to-mandate-health-insurance/

The key point that Randy Barnett fails to confront is this: Currently, individuals cannot buy insurance that covers pre-existing conditions and has no "medical underwriting." Currently, it's not feasible for insurers to offer such a product (due to "adverse selection"). An insurance mandate is needed in order to create market conditions that allow this different kind of insurance product to be sold. That's why a mandate is more than just a requirement to buy a someone's product. Instead, it's an essential part of insurance regulation and comprehensive market reform -- unlike the various examples Prof. Barnett offers as extreme analogues.