Randy Barnett on the constitutionality of Obama’s health care mandate

Yesterday, the Senate Judiciary Committee held a hearing that examined the constitutionality of the ObamaCare individual mandate.  The hearing came only days after a federal judge in Florida ruled that President Obama’s landmark healthcare overhaul is unconstitutional.  The 78 page decision (which I analyze here) essentially instructed the federal government to immediately stop implementing the ObamaCare law.

I recently concluded my 8 part series of blogs that considered this very issue by stating:

A federal mandate on insurance regulates existence.  Being alive is not an “economic activity” or even an “activity” at all.  Therefore, it remains outside of the regulatory powers granted to Congress by the Constitution.

Similarly, federal Judge Roger Vinson of Florida ruled that the law is unconstitutional writing in his decision:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting… that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

In his testimony before the Senate Judiciary Committee, Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center and author of Restoring the Lost Constitution which I relied upon in my examination of the Commerce Clause, draws the same conclusion as Judge Vinson and me.  He states:

…the Commerce Power has never been construed to include the power to mandate that persons must engage in economic activity…

His testimony is thoughtful, insightful and certainly worth the 6 minutes that it takes to watch it in its entirety: