Randy Barnett’s argument with respect to the unconstitutionality of the mandate hovers around the notion of being unprecedented (see here, here, and here). While liveblogging Randy Barnett’s address before the ACS on the constitutionality of the individual mandate, I proposed a Randy Barnett drinking game.

Drinking game. How many times will Randy say unprecedented? (this is like the John Bingham drinking game on VC)

I think some Judges may have been reading Randy’s work. Today, the Eastern District of Virginia denied the government’s motion to dismiss in the Commonwealth of Virginia’s challenge to the individual mandate.

With respect to the Commerce Clause argument, the Court wrote:

The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

With respect to the taxing power argument, the Court wrote:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate–and tax–a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Give the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this time stage that the Complaint fails to state a cause of action.”

Unprecedented indeed. Take a shot for liberty. And I’m buying Randy a round.

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