The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA. I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich. The standard view in the legal academy for many years has been that Congress’s Commerce power is virtually unlimited, with perhaps minor largely symbolic exceptions, as in Lopez and Morrison. But in representing Raich, Randy read all of the relevant cases closely, and discovered that they don’t quite say what people think and assume they say. Sure, the precedents give Congress vast powers. But they don’t control the outcome in the ACA litigation, or at least one can make a very powerful argument that they don’t.
I’m pretty confident that the challengers will get at least at least three votes, and I won’t be at all shocked if they get five. The Times quotes professors Charles Fried and Doug Laycock as being very dismissive of the challenges, but if any of our readers happen to run into Fried or Laycock, I’d be curious to know the answer to this question: How many votes did you think Lopez would get, and how many votes did you think Raich would get? If they are like the vast majority of their fellow constitutional law professors, the answers are (a) I didn’t take the Lopez case seriously enough to even spend time thinking about it (Lopez got five votes); and (b) either one or zero (Raich got three votes).