Sen. Paul's Amicus Brief on Obamacare

Sen. Rand Paul's amicus curiae brief to the Supreme Court not only calls on the Court to strike down Obamacare, but to jettison the 1942 precedent that has allowed Congress to blow past its enumerated powers under the Commerce Clause.  That case held that Congress can forbid a farmer from feeding his family and livestock with wheat he grew himself on his own farm; it ushered in the era of big government -- and big debt.

Here's a link to the brief.  In full disclosure, I am counsel of record.  Constitutional conservatives will appreciate that Paul calls for the Court to overrule Wickard v. Filburn  when it addresses Obamacare.  That's the case that Judge Silberman of the D.C. Circuit reluctantly concluded justified the individual mandate.  Of course, the D.C. Circuit, as an intermediate court, is stuck with Wickard.  But the Supreme Court is not.  In all likelhihood, the Court will distinguish Wickard, if it strikes down Obamacare.  However, look for Justice Thomas to echo Paul's call to make clear that Wickard was wrongly decided.

Sen. Paul spoke about the brief and many other topics yesterday at the Federalist Society's Louisville Lawyer Chapter. This is the first time that he has spoken to any Federalist Society chapter, and he drew a huge crowd.  It's a natural fit, because like the Tea Party, the Federalist Society seeks for rule of law based on the plain text of the constitution as understood by the Framers:  limited government, personal responsibility, liberty.

Here's some of the press coverage.  WFPL  had the best coverage of the brief.  The C-J focused mostly on Paul's opposition to federalizing  the criminalization of synthetic drugs. WAVE 3 fixated on Paul's assessment of the odds of a brokered Republican Convention, which he put at 30 percent. WHAS 11 made the point that Paul is "staying true" to his campaign message.  (How sad that it is actually newsworthy for a politician to keep his word.).

The Daily Caller picked up on Paul's remark that he would be "honored" to be considered as candidate for Vice President. There is speculation that the reason Ron Paul is hitting Rick Santorum so hard, but not Mitt Romney, is that Ron Paul has cut some kind of deal to be Romney's V.P. nominee.  In fact, Rand Paul would probably add more to the ticket than his father.

Here's what the media missed yesterday:  in casual conversation, before the event started, when asked whether he would run for president, Paul very candidly said he was "thinking about it." In the event that Obama is reelected, I expect Paul to run.

A few observations on working with Paul on the brief.  Law students of all ideological persuasions have thought for 70 years that Wickard v. Filburn was wrongly decided.  It makes a mockery of a federal government, and particularly a Congress, that is subject to enumerated and hence limited powers. 

To have a sitting member of the U.S. Senate show the courage and intellectual honesty to say what so many think -- that Wickard   is wrong --  was extraordinary.  It is the constitutional equivalent of telling the Court that the Emperor has no clothes.

I was struck by Paul's command of constitutional law; he is a non-lawyer  who knows more than most lawyers.  He is a voracious reader who loves history.  I was also struck by his humility and sense of humor.  Despite his intellect and position, he is modest and down to earth.

Although I still don't agree with him on all issues, I think that we are blessed to have his service.