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Is Obamacare Unconstitutional?

At PJTV, Glenn Reynolds and Randy Barnett discuss the constitutionality of Obamacare’s individual mandate. A number of states, among others, are poised to litigate that issue. Do they have a chance? My instinct is to be highly skeptical. Our courts have justified pretty much anything the federal government has undertaken involving any kind of commercial transaction under the interstate commerce clause. In order to lose that battle, Congress has just about had to go out of its way to define legislation in a way that excludes interstate commerce, like regulating firearms within so many feet of a school.
What this reflects is that we, as a society, have stopped taking seriously the idea that the federal government is a government of limited powers. In this respect, I think the courts have followed, rather than led.
But maybe the tide is turning. The Tea Party movement is at heart a call for limited government and a restoration of the Constitution. With the unprecedented accumulation of federal power taking place in the Obama administration, there is a growing sense that a final battle over the proper role of our national government must be fought. So who knows? Maybe the case for limited government has a chance.
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