[Update: an amicus brief Barnett just filed in the Sixth Circuit can be found here.]
While I’m on the subject, this is a readable essay – very much the high theory behind the various cases challenging the Affordable Care Act – arguing for the ACA’s unconstitutionality. Barnett’s brief for the activity/inactivity distinction comes on p. 21. There, he confines himself to “the two problems that are most likely to stop the Court from accepting the idea that Congress may use its power over interstate commerce coupled with the Necessary and Proper Clause to compel persons to engage in economic activity.”
The first is that such a claim of power has never before been asserted by Congress, much less validated by the Supreme Court. It is literally unprecedented. Consider this: had the Commerce and Necessary and Proper Clauses been used to mandate individual conduct, every citizen would be able to recite all the mandates to which he or she must adhere upon penalty of a fine.
This is a blatant endorsement of the folly I predicated of Judge Hudson here, and which MM, optimistic and charitable as ever, resisted attributing to him. I’d also note that I’ve rarely seen so many dubious sleights of hand in one small place. “..much less validated by the Supreme Court” — well, of course if it hasn’t ever been asserted by Congress; how else is the Court going to validate an assertion of congressional power!? “Literally unprecedented” — yes, but not (as far as Barnett has established) in any legally meaningful sense. It is “literally unprecedented,” instead, in the unproblematic sense that any new exercise of congressional power – any new law – is unprecedented before it is passed. And “Consider this:” adds nothing of any value.
Turning to the second “problem:”
Accepting this theory [that Congress can compel people engage in affirmative actions] would open the door for an infinite variety of mandates in the future. Under this theory of “activity,” Congress can mandate individuals do virtually anything at all on the grounds that the failure to engage in economic activity substantially affects interstate commerce. Therefore, it would effectively obliterate, once and for all, the enumerated powers scheme that even the New Deal Court did not abandon.
No. The pretextual exception – the focus of Lopez and Morrison – would still be intact. That’s the exception that prevents Congress from a sham “exercise” of its commerce power, i.e. an “exercise” over conduct with an “attenuated effect” on interstate commerce, which is really just a foray into the “purely local” traditional hunting-grounds of the States. Such an “exercise” is to be contrasted with a bona fide regulation of interstate commerce. The latter I’m pretty sure, is one of the enumerated powers, not an “obliteration” of them.