Or so thinks Ian Milheiser, who seems genuinely concerned about Randy:
As the Supreme Court explained very early in American history, there is “no sort of trade” that our national leaders cannot regulate, and the the power to regulate something “implies in its nature full power over the thing to be regulated,” so long as Congress does not trample the individual protected elsewhere in the Constitution.
Few living Americans have done more to undermine this vision than Randy Barnett, a Georgetown law professor and one of the leading architects of the lawsuits challenging the Affordable Care Act. In an interview with NPR yesterday, Barnett admitted just how far he’d like to go in reimagining the Constitution if his attack on health reform succeeds: . . . .
In other words, the fake constitution espoused by the anti-health reform case’s chief architect would roll back nearly one hundred years of progress — leaving poor children, minorities, workers and women out in the cold. If he wins in the Supreme Court next month, any of the great legislative victories of the New Deal and Civil Rights Eras could be next on the chopping block.
Update: Randy replies:
Ian, thanks for drawing attention to my work, but let me clarify. Nina Totenberg also accurately reported my view that a decision to invalidate the individual insurance mandate would not require the Supreme Court to overturn ANY of these precedents you like. If it did, we would not have so good a chance to prevail as we do. Of course, the Court is free to write a very broad opinion that would undermine its previous decisions, but we have not asked it to, and I would be shocked if it did. (Assuming we prevail, that is.) So even the reasoning of a decision invalidating the insurance mandate won’t do what you fear. Should we win, this will be an important symbolic victory for the idea of limited and enumerated Congressional power, but all the Court will need to say is that this unprecedented power, never before exercised in our history, is a step too far. (And as for the Civil Rights Cases, which I support, they should have been upheld under the 14th Amendment, rather than the Commerce Power, which some of the Warren Court justices did prefer. But bad Supreme Court precedent made the newly expanded Commerce Clause the path of least resistance. And Plessy was VERY bad law to which I have no desire to return.) While we do disagree about some important issues, civil rights is not one of them.