SCOTUSblog has just posted a detailed analysis of today’s decision that I did for them. It’s much more thorough than anything I have been able to put up elsewhere. Here is an excerpt: Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued […]
Archive | Commerce Clause
Supreme Court Majority Endorses Activity-Inactivity Distinction
By Ilya Somin on June 28, 2012 11:51 am in Commerce Clause, Federalism, Health Care, Individual Mandate
Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power […]
Andrew Koppelman on the Origins of the Case Against the Individual Mandate
By Ilya Somin on May 31, 2012 2:32 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Northwestern University Law Professor Andrew Koppelman has an article in Salon on the origins of the case against the individual mandate, in which he tries to show that Democrats could not reasonably have anticipated that the mandate would run into legal problems, and therefore cannot be blamed for not being more careful in the way […]
Jeffrey Rosen’s Proposed Limiting Principles for Federal Power
By Ilya Somin on May 29, 2012 5:44 pm in Collective Action Problems, Commerce Clause, Federalism, Health Care, Individual Mandate
In a recent response to critics of his earlier column on the individual mandate case, Jeffrey Rosen claims that upholding the individual mandate would not lead to unlimited congressional power because “Congress [still] cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective […]
Nonlegal Arguments for Upholding the Individual Mandate
By Ilya Somin on May 21, 2012 5:57 pm in Commerce Clause, Conservatism, Constitutional Theory, Federalism, Health Care, Individual Mandate, Public Opinion
Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly […]
Post-argument debate on the constitutionality of Obamacare
By David Kopel on April 18, 2012 12:00 am in Commerce Clause, Constitutional History, Constitutional Law, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.
Larry Lessig on the Politics of the Supreme Court’s Federalism Jurisprudence
By Ilya Somin on April 15, 2012 11:30 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation: The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. […]
Individual Mandates for Foreigners and Indians
By Eugene Kontorovich on April 6, 2012 11:19 am in Commerce Clause, Constitutional Law, Health Care, Individual Mandate, Supreme Court
In my previous post, I argued that the broad interpretation of the Commerce Clause advocated by the government would have the absurd result, when applied to the parallel foreign commerce clause, of allowing Congress to impose mandates on foreigners with no prior contacts with the U.S. Many commentators fought the hypothetical, saying such a law […]
Nearing the end of the search for the non-existent limiting principles
By David Kopel on March 29, 2012 4:47 am in Commerce Clause, Constitutional Law, Federalism, Fifth Amendment, Growth of Government, Guns, Health Care, Individual Mandate, Necessary and Proper, New Class, Regulation, Supreme Court, Taxes, Uncategorized
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over […]
My CNN Column on the Individual Mandate Case
By Ilya Somin on March 26, 2012 9:44 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt: This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is […]
Audio of My Recent NPR Individual Mandate Discussion with Professor Vikram Amar
Earlier today, UC Davis lawprof Vikram Amar and I were on a KQED NPR radio program discussing the individual mandate litigation. Amar believes that the Court should uphold the mandate whereas I, of course, do not. The audio is available here: One thing I notice about these radio exchanges is that there is a tremendous […]
Obamacare in Wonderland
By David Kopel on February 9, 2012 1:46 pm in Commerce Clause, Constitutional Theory, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA […]
Newt Gingrich on Marijuana and the Founding Fathers
Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on […]
The DC Circuit Decision Upholding the Individual Mandate
I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say. Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that […]
Judge Silberman on the Individual Mandate
I thought readers might be interested in the key passages from the DC Circuit’s majority opinion, authored by Judge Silberman, upholding the individual mandate under the Commerce Clause: The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held […]