Thursday, June 30, 2011

Randy Barnett's reaction to TMLC v. Obama

You can find it here. As always, Randy's thoughts are worthy of careful examination.

For what it is worth, I would quibble with his fifth point--that "Judge Martin accepted the requirement the Congress must regulate activity." I think a fairer reading is that Judge Martin concluded that what Congress is regulating via the minimum essential coverage provision is "activity," and thus any constraint on Congress's capacity to reach "inactivity" through its commerce power--if one can actually distinguish activity from inactivity in this context--is thus beside the point.

In any event, Randy's ideas are quite important. They are apt to be well represented in a soon-to-be-forthcoming cert petition, not to mention the briefs on the merits at the Court that really matters.