Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that "the people" enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr. Here is an excerpt:
I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr's concerns. I would like to add something to Professor Barnett's argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon's post here). This is constitutionally significant to the anti-commandeering argument.
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