Libertarian lawyer Randy Barnett, the attorney who represented the plaintiff in Gonzales v. Raich, on Judge Henry E. Hudson's distinction between "activity" and "inactivity" in his ruling striking down the individual mandate.
Does anyone want to bet serious money on whether Justice Scalia, the father of this newly minted Necessary & Proper Clause doctrine, won’t see all this by the time the case reaches the Court, that he won’t adopt Judge Hudson’s distinction between activity and inactivity as a judicially administrable limit on his doctrinal creation, and that he won’t distinguish Raich (and Wickard) from this case on this ground? I did not think so. Justice Hudson intuited all this in his ruling on Monday.
What'd I say? I think Hudson's distinction in the context of the health insurance market is spurious, but that's why it's there: to give Scalia a superficially plausible way to avoid contradicting his ruling in a prior case.
