Rivkin agreed with Randy Barnett, a professor of legal theory at Georgetown University Law Center, who cited the “necessary and proper” clause, as well as the "substantial effects" doctrine originally proposed by Justice Antonin Scalia.
“You realize there is a limiting doctrine on necessary and proper,” said Rivkin, and that the “line between economic and non-economic activity” has already been formulated through existing case law.
Fried insisted that in practice, the government’s powers have been virtually limitless. He cited a case where the government had required children to be vaccinated — a purchase, a service, and physical pain.
“There was a needle into the body they mandated for that,” said Fried, who insisted that the only leg conservatives have to stand on were “liberty arguments,” that "make my heart beat faster.”
Rivkin insisted that government’s power had to be limited, and that the health care bill was unprecedented. Next up, he said, was the “Happiness and Welfare Act of 2011.”