Wednesday, August 25, 2010

Magliocca and Barnett on "unprecedentedness"

I should point out two interesting posts in the past 24 hours on the significance of the minimum coverage provision (ACA section 1501) being "unprecedented." Randy Barnett has been arguing (for about a year now) that the regulation of non-action--commanding persons into private transactions--would be an "unprecedented" use of the commerce or taxing powers. (See here, for example.) Gerald Magliocca points out here that the distinction Barnett is trying to draw, between regulating private action and mandating certain actions, is equally "unprecedented." Barnett responds thoughtfully here. Both posts are worth a careful read.