Volokh Conspiracy: Final Thoughts on the Eve of the Individual Mandate Decision

Over the last year, I have written an academic article, several amicus briefs, and countless blog posts and op eds about the individual mandate case. Whether I said anything useful or not is for others to judge. But, as a constitutional federalism scholar and one who had long argued for the need to enforce constraints on the scope of federal power, I felt I could not simply sit out what will surely be one of the most important federalism cases of my lifetime.

If the Court ends up striking down the mandate (which I continue to believe is a 50-50 proposition), it will be because the federal government failed to come up with a good explanation of how the law can be upheld without giving Congress nearly unlimited power to impose other mandates. Although both sides in the litigation have come up with numerous interesting points, I continue to think that this is the central issue, and the biggest flaw in the federal government’s position.

I would like to thank Eugene Volokh for inviting me to join the Volokh Conspiracy, without which I might not have been able to be involved in this debate to anything like the same extent. I would also like to thank the Washington Legal Foundation, several members of Congress (at the lower court level), and many of my academic colleagues (including several of my co-bloggers) for giving me the opportunity to represent them by writing amicus briefs on their behalf, including one at the Supreme Court level. It was a great honor to be your advocate in this important case.

Many have commented on the role of the Volokh Conspiracy in promoting the viability of this challenge. Co-blogger Randy Barnett deserves great credit for developing several of the most important arguments underlying the challenge, and especially for his December 2009 paper with Todd Gaziano, which gave an excellent and very influential early explanation of why the individual mandate was unconstitutional, and how it was not authorized by previous precedent. Co-bloggers Jonathan Adler, David Kopel, and David Bernstein also played an important role in developing legal arguments and participating in the resulting public debate.

In my view, the VC was just one of many factors that made this challenge more viable than the mandate’s defenders initially expected. Perhaps our most important role was in challenging the oft-made claim that there was an expert consensus in favor of the constitutionality of the mandate. This helped undermine the emerging narrative that this case was a frivolous no-brainer that only people ignorant of constitutional law could support. But it is important to add that we were not the only legal academics who helped develop the case against the mandate, and discredit the myth of a consensus. Non-VCers who made important contributions include Steve Calabresi (Northwestern), Richard Epstein (NYU), Gary Lawson (BU), Steve Presser (Northwestern), Steve Willis (Florida), and others whom I apologize for omitting.

Outside the academy, enormous credit goes… (click here for original post).