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Con law, con law everywhere. Randy Barnett and Jack Balkin continued their debate over the constitutionality of the individual insurance mandate of the health care reform law. Barnett argued on Sunday that the Obama administration’s move to defend the mandate as a tax indicated its assessment that the Commerce Clause might not be sufficient, thus refuting those who dismissed the Commerce Clause challenge as frivolous. Balkin responded that it just shows government attorneys being good lawyers by piling on every argument they can think of, and that what’s really going on here is an attempt to turn back the clock on the cultural-legal shift that accompanied the New Deal. (See Josh Blackman for more on Balkin’s argument.) Barnett replies that if he’s making an “off-the-wall” argument, he’s got 21 state Attorney Generals with him, and that the truly unprecedented argument is “[t]he claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS.”
That wasn’t the only New Deal flashback this week.