Letter to the Editor
The New York Times, February 17, 2011
To the Editor:
Your Feb. 10 editorial “A Debate Bigger Than Reform” criticized my testimony before the Senate Judiciary Committee on the unconstitutionality of the individual insurance mandate.
My testimony exclusively concerned why the individual mandate was outside existing Supreme Court doctrine, which limits Congress’s power under the commerce clause and the necessary and proper clause to regulating or prohibiting economic activity.
Current doctrine has never recognized a power to compel the citizenry at large to engage in economic activity, a power Congress has never before claimed. Therefore, nothing in my testimony would “fundamentally weaken” or “severely limit” the current powers of Congress.
Congress has many constitutional ways to address the market distortions that are inflating the costs of both health care and health insurance. And, although I would oppose such a program, existing doctrine would allow Congress to impose a “single payer” tax-and-spending scheme like Medicare on everyone.
Randy E. Barnett
Washington, Feb. 12, 2011
The writer is a professor of legal theory at Georgetown Law School.
http://www.nytimes.com/2011/02/18/opinion/l18mandate.html