"A year ago, pretty much all law professors dismissed the argument as frivolous.... The law professors had a failure of imagination."

That's Randy Barnett — talking about the constitutional challenges to the health care law — quoted in Politico's ominously titled article "Right takes refuge in Constitution."

By the way, last Wednesday, I attended a Federalist Society-sponsored panel discussion here in Madison about this topic. One of the speakers was Wisconsin Attorney General J.B. Van Hollen, who has just taken steps to join the Florida lawsuit challenging the law. Also on the panel were Jon Richards, a state legislator who supports the law, and Ilya Somin, the George Mason law professor who has written that the lawsuits are at least not frivolous.

Scrambling to find 2 of the last few seats, Meade and I sat at a table which seemed to be full of lawyers who supported health care reform. One lawyer haughtily informed me that whatever law professors might think about the Constitution, it's really all politics, and this health care reform represents a big, important political effort and that's why it's going to be upheld in the courts. I said, if it's all politics, then what of all the politics pushing back against the law? What about the polls that show most people are against it and what about the last election? If you're going to say politics determines the outcome, then don't you have to take that politics into account too? The lawyer looked either alarmed or angry, because I, a law professor, didn't simply assert that the Constitution matters, which would have made it easy for him to irritatingly chuckle about naivete. But right then, the panel started, saving him from having to try to wriggle off my skewer.

Van Hollen kicked off the discussion with assertions that he joined the lawsuit not because he's opposed to the health care statute, but because of the rule of law. The litigation is important to test the scope of congressional power. We have a system of a balance of powers, which he likened to a "teeter-totter." The states have to take their position on the other side of the teeter totter or things aren't going to work very well. The idea is to push back against federal power and to give the courts the opportunity to clarify the law. Van Hollen speaks like the well-polished politician he is.

Richards was having none of this abstract rule-of-law business. Economic realities should trump legal jargon, he said. He portrayed constitutional law as a matter of technical conceptions that shouldn't be allowed to stop government from doing the things that need to be done. He focused on the policy reasons for supporting the law and the argument that the law is constitutional flowed naturally from his support of the law. As for lawsuits: "Lawsuits are a real distraction."

Somin said the rule of law is "technical conceptions" — which was the punchline of the day, in my view. He gave a measured presentation, explaining the case law in a professorly style, and assessing the odds that the Supreme Court would overturn the individual mandate. (He said the 4 liberals would stick together and uphold it, that the conservatives were a more "fractious" bunch, so although Scalia, Thomas, and Alito would vote against it, he doesn't know what Roberts and Kennedy will do.)

Here's my page of notes from the Somin part of the panel:



After that, there were some questions from the audience. One questioner, trying to get his mind around the notion that the failure to buy insurance is inactivity and arguably therefore not "economic activity" within the meaning of the Commerce Clause case law, said "If you look at a human being as a going concern...." — which I thought was pretty funny. Yes, the government sees us as little businesses, as we sit here ostensibly doing nothing: our hearts pump blood, our gut digests food, and our brain cells spark with resistance to the purchase of products the government knows we should be buying.

ADDED: Video of the panel, via Ilya.

Ilya Somin is not ready to say he wants Mitch Daniels for President.

But he sure like his list of 5 favorite books.

"Very bad news for constitutional federalism."

Says Ilya Somin about today's decision in Comstock...

The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

Though "the statute involved here is somewhat peculiar,"  so that it might be distinguished in future cases, Eugene Volokh says that the Chief Justice's joining the majority suggests that the Court has lost its taste for striking down federal laws on the ground that they exceed Congress's enumerated powers.

To be sure, the facts of this case are unusual, because the law here applies only to people who had already been convicted of federal crimes. But the majority’s rationale seems quite broad; it concludes that federal power challenges should be upheld so long as they are “rationally related to the implementation of a constitutionally enumerated power” — that’s the famously extremely deferential “rational basis” test....

But, "the case has little or no import for the constitutional challenges to the individual health insurance mandate," says Randy Barnett:

Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power....

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is “necessary and proper” to execute its power under the Commerce Clause. Moreover, the argument for “necessity” is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court’s normal deferential approach, finding “necessity” won’t be hard.

The problem with the mandate is whether it is a “proper” means to achieve a constitutional end. ...

In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an “improper” means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power....

"Sunstein has nothing to do with the 'czars' or the problems with the ‘czars.'"

"The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in 'Nudge.' But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs]."

Is it easier for the poor to up and move to a new place to take advantage of better opportunities?

Ilya Somin thinks that "contrary to conventional wisdom, 'voting with your feet' generally benefits the poor more than the relatively affluent."

It was easier for him when he was poor, anyway:

By contrast, my fiancee and I have recently moved into a new house a mere three miles away from my old condo. For me at least, this move has been more stressful than the previous five combined. Why? Because, due to my much higher pay since becoming a law professor, I now have many more possessions. The packing and unpacking have been a major pain, to put it mildly. Similarly, moving into a house required hiring contractors to do some work to get it ready, and dealing even with good contractors (like the ones recommended to us) is time-consuming and annoying, especially for people who are inexperienced with it. The process of selling the old home and purchasing a new one also requires an investment of time, effort, and money that people moving from one rental unit to another don't have to deal with.

Poverty has its privileges:



But you know, you can have money and not accumulate possessions. In fact, you'll have more money if you don't buy stuff. I'm sorry to point that out when I know we're in a recession in an economy that depends heavily on consumers enthusiastically purchasing things, but the truth is, you can live very simply, and it can be quite rewarding, emotionally and aesthetically. Keep it simple, and you will have more freedom: You can easily — as Ilya says — relocate; you have more of your money left to buy things if you ever do really want or need something; and you'll have less clutter to look at, worry about, maintain, and fuss over.