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From the ABA Journal, Justice Scalia had choice words for an attorney who, apparently made up a word, during Oral Arguments.

The problems began for lawyer Randolph Barnhouse soon after he described an opportunity to collect tax money as an “inchoate” interest—an interest that is not yet fully formed, the Associated Press reports.

Barnhouse was arguing that a city government may not bring a RICO suit to recover uncollected taxes because a lost tax opportunity is not an injury to property covered by the statute. (SCOTUSblog has the argument preview.)

In response to a hypothetical, Barnhouse then spoke of a “choate” interest in property—to Scalia’s dismay. Page 5 of the transcript (PDF) has the exchange.

“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ ”

As Barnhouse tried to move on, Scalia offered an example. “It’s like ‘gruntled,’ ” he said.

“But I think I am right on the law, Your Honor,” Barnhouse offered, but Scalia wasn’t done.

“Exactly. ‘Disgruntled,’ ” Scalia said. Some people mistakenly assume the opposite of “disgruntled” is “gruntled,” he explained.

I bet after arguments, this attorney was not gruntled.

I have the cool opportunity to ask Anne Heller some questions about her new book, Ayn Rand and the World She Made.

In the spirit of the blogosphere, I am soliciting questions. If anyone has any questions about the book, about Rand, or about Rand’s works, post them in the comments below.

I’ll pick the questions I like the best, and ask them to the Author. Fire Away!

I would like to extend a hearty congratulations to Kenn Cucinelli on his victory as the next Attorney General of the Commonwealth of Virginia.

General Cuccinelli is a staunch defender of liberty, the Constitution, and the rule of law, and makes everyone at Mason proud!

Ken fought a hard race against two qualified candidates during the Republican primary, and came out on top. We hosted all three candidates at a debate at Mason Law last March.

Here are the final results.

The Federalist Society is hosting an online debate between Dean Chemerinsky and David Rivkin.

Cheremsinsky’s argument, in a nutshell:

The constitutional objection that I have heard most often is that Congress lacks the authority under Article I of the Constitution to do this. But such a mandate clearly falls within the scope of Congress’s authority to regulate commerce among the states.

Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce. Purchasing health insurance is an economic transaction. Taken cumulatively those who do this, or who don’t do it, have a substantial effect on interstate commerce.

Rivkin counters:

There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all. It regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.

The cases cited by Professor Chemerinsky – Wickard v. Filburn and Gonzales v. Raich – do not support his position. In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana. The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities, especially since Congress sought to regulate them as a part of a comprehensive inter-state regulatory scheme.

Rivkin’s argument is a stretch, though it is a bit refined from some of his previous arguments.  Ann Althouse made a similar point. It is more likely will find that mandating a person to do something is different from regulating how a person does something. There is a distinction, but it may be without a difference.

From SSRN, The Corporate Law Background of the Necessary and Proper Clause (H/T Legal Theory Blog):

This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.

I find it amazing that no one has discovered this linkage before. Fascinating piece of scholarship. How does this affect an origiginalist inquiry:

And, of course, inferences from the corporate law background of the Necessary and Proper Clause say little, if anything, about interpretations not based on original understanding. These caveats notwithstanding, an understanding of the corporate law background provides perspective and adds texture to our understanding of this important provision