Posts Tagged ‘Ninth Amendment’
July 24th, 2010 at 6:43 pm
ObamaCare’s Individual Mandate a “Commandeering of the People”?

In today’s Wall Street Journal constitutional law professor Randy Barnett makes an intriguing connection between the anti-government anger of millions of Americans and a currently accepted legal theory that may overturn ObamaCare’s individual mandate.

He notes that twice in the 1990s, the high court struck down federal mandates against state governments—one requiring legislatures to pass laws dealing with the transport of nuclear waste, and one mandating that police conduct background checks on gun buyers—saying they amounted to unconstitutional “commandeering” under the 10th Amendment. That amendment is usually thought of as protecting states’ rights, but note the final four words: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

Kudos to Barnett for providing a legal rationale for the frustration felt by millions of Tea Party activists.  Hopefully, swing voter Justice Anthony Kennedy is listening.