Georgetown law professor: government is shifting its constitutional defense of ObamaCare 

Georgetown Law Professor Randy Barnett said that Wednesday's oral arguments before the U.S Court of Appeals for the Fourth Circuit demonstrate the Obama administration is shifting its legal justification for the national health care law's individual mandate.

Barnett has been one of the leading legal opponents of the national health care law, and is currently assisting the National Federation of Independent Business, which is a party to a separate suit against the law involving 26 states led by Florida. That case will be heard before the 11th Circuit Court of Appeals in Atlanta next month.

“The government keeps changing its theory about what was being regulated,” Barnett said in a phone interview with the Examiner.

Originally, he noted, the government was arguing that the law was regulating the mental activity of whether or not to purchase insurance. But now the argument is that it's regulating the activity of obtaining health care.

“They're kind of making it up as they go along,” he said of the Obama administration.

Despite the fact that the three-judge appeals court panel was comprised entirely of Democratic appointees, he said there was a positive surprise for opponents of the law.

One of the central arguments being advanced by opponents of the legislation is that the Commerce Clause can't justify the individual mandate because the act of not purchasing insurance is not an economic activity, but rather, 'inactivity.'

While the Obama administration argues that there is activity, during oral arguments judge Diana Gribbon Motz pressed Obama solicitor general Neal Kumar Katyal to entertain a hypothetical: if the court were to find it was 'inactivity,' then what should it do with the word “regulate” in the Commerce Clause? Does the word “regulate” imply that there's something going on to regulate?

When Katyal struggled to come up with an answer, Motz told him to sit down for awhile and think about it. Eventually, he got back to her, and argued that Congress also had the regulatory authority under broader Necessary and Proper Clause powers and the test is whether there's a “substantial effect on commerce.”

Barnett said the mere fact that Motz asked the question, while not suggesting how she'd vote, did indicate she was “bothered” by the implications of the legal precedent involved, even though her earlier questions seemed to disregard the the distinction between “activity” and “inactivity.”

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Philip Klein

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