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Randy Barnett has offered the following thoughtful challenge to my earlier post on Judge Vinson's opinion regarding the individual mandate. (He tried to post it as a comment, but, for reasons beyond my ken, it would not post, so I reprint it here):

"Rick writes, 'How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?' Where does Printz fit into the structure your analysis? Didn't Congress have a rational basis for believing that mandating local sheriffs to run background checks was means that was necessary to its legitimate end of regulating the interstate commerce in guns? Was there any express prohibition against employing such 'means'? Is the 'letter' of the Tenth Amendment limited to the protection of state sovereignty? Indeed is "sovereignty" (state or otherwise) mentioned anywhere in the Constitution? (Also notice Justice Scalia's discussion in Printz about the unprecedented nature of state mandates first held unconstitutional in the 1990s in New York. Before New York and Printz, there was no 'anticommandeering' principle because state commandeering had not been done before the 1970s)



"This is NOT a question about the differences between 'commandeering the states'and 'commandeering the people' -- i.e. your second paragraph. We should discuss this separately. I have questions about your position on that too. My question is simply how Printz fits the syllogism you wrote in your post."

The critical point overlooked by Randy's question to me, is that Printz has nothing whatsoever to do with the doctrine of enumerated powers. Instead, Printz relies on a wholly different doctrine -- the idea of intergovernmental immunity that has its origins in the second part of McCulloch and the Court's 1871 decision of Collector v. Day . Contrary to Randy's assertion that there was "no 'anti-commandeering' principle" before Printz, a version of the anti-commandeering principle had existed for more than a century and been continuously debated not only in constitutional chestnuts like National League of Cities v. Usery (1976) but in lesser-known opinions like New York v. United States(1946). Unlike Randy's argument, Printz did not rely on the notion that state inaction is not "commerce" or on the idea that, if one allowed Congress to commandeer state regulation, then Congress could regulate anything. Instead, the Court could latch on to a century of jurisprudence categorically exempting federal regulations of state governments from the normal McCulloch analysis.

For Randy to persuade us that private mandates should be similarly exempt from the conventional "enumerated powers" analysis, Randy would have to identify some line of precedent analogous to the "state immunity" cases, suggesting an across-the-board suspicion of laws conscripting individuals -- a judicial suspicion not tied to the text of any particular clause of Article I, section 8. Failing that, Randy should make a normative argument analogous to Printz's "political accountability" theory, that conscription is a sui generis burden on individual freedom and, therefore, exempt from ordinary means-ends analysis of McCulloch. As I noted earlier, Randy's brief would be more persuasive if he actually embraced libertarian theory more openly by explaining what makes conscription especially worrisome. His textual argument (that "inaction" is not "commerce") and reductio ad absurdum argument (that a line must be drawn somewhere) invokes neither such a pedigree of precedent nor such a normative theory. In my view, these arguments are, therefore, as unpersuasive as would be an argument -- not made in Printz -- that "commandeering" laws fall outside Congress' powers because state inaction is not "commerce" or that, if Congress could commandeer states, then Congress could do anything it wanted to do.

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