Here are a few thoughts on today’s federal district court ruling striking down the constitutionality of the Obamacare individual mandate. In my view, the strongest parts of Judge Henry Hudson’s opinion are those where he rejects the federal government’s arguments under the Commerce Clause and the Tax Clause. On the Commerce Clause, federal government lawyers […]
Archive | 2010
Lucia Perillo and the Rebekah Johnson Bobbitt Award at the Library of Congress
I have just returned from a poetry reading at the Library of Congress, the awarding of the Rebekah Johnson Bobbitt prize in poetry, hosted by Rebekah Bobbitt’s son, Columbia and UT law professor and my dear friend Philip Bobbitt. It was great. I was prepared for a (deadly) serious Encounter with the Arts, and Lucia […]
New York Times Room for Debate Blog Forum on Today’s Individual Mandate Decision
By Ilya Somin on December 13, 2010 9:50 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Sports and Games, Taxes, Taxing and Spending Clause
The New York Times Room for Debate blog has posted a forum where various scholars weigh in on today’s district court decision striking down the individual mandate. It includes contributions by co-blogger Randy Barnett and myself. My piece briefly discusses the Commerce Clause and Tax Clause aspects of the ruling: Judge Henry Hudson’s decision today […]
Life Imitates Rehabilitating Lochner
By David Bernstein on December 13, 2010 9:44 pm in Constitutional History, Health Care, Rehabilitating Lochner
[UPDATE: Not worth responding to a certain obnoxious blogger, but, for those who are interested, feel free to check out the praise for my book from notorious right-wingers (NOT!) Jack Balkin, William Nelson, Mark Tushnet, and G. Edward White.] Rehabilitating Lochner, Conclusion: The longstanding myth of a wildly activist, reactionary Supreme Court imposing a grossly […]
“The Wisdom of Repugnance”
My colleague Professor Bainbridge responds to my posts about incest and about law and morality by saying, “I have no problem with basing laws on the yuck factor, as I’ve explained before. Leon Kass aptly called it ‘the wisdom of repugnance’; i.e., ’emotional expression of deep wisdom, beyond reason’s power to fully articulate it.’” I […]
A Quick Reply to Jonathan on the Virginia Mandate Decision
I appreciate Jonathan’s agreement with me that Judge Hudson’s analysis of the Necessary and Proper Clause is flawed. He then cautions, with emphasis added: The Court’s decisions, from McCulloch to Comstock, only go so far in addressing this question. They clearly confirm that Congress can take some steps beyond the scopes of the other enumerated […]
Further Thoughts on the Virginia Health Care Ruling and the Necessary and Proper Clause
In his post below, Orin criticizes Judge Hudson’s opinion for implying that if Congress may not regulate inactivity under the Commerce Clause it also may not reach such conduct under the Necessary and Proper Clause. This cannot be right because, as Orin notes, the whole point of the clause is to give Congress the ability […]
Initial Thoughts on the Virginia Health Care Ruling
The federal district court’s decision declaring portions of federal health care reform unconstitutional reaffirms that the federal government has limited and enumerated powers. The theories advanced by the federal government in support of the mandate were without bounds and could have justified virtually unlimited federal control of private activity. Reforming America’s health care system is […]
Supreme Court Relist Watch
On a day when traffic to read about the substantively important decision in Virginia v. Seblius is so heavy that the page is running very slowly, this seems like a great time to post on a subject of interest to practically no one at all. But hey, I amuse myself. Three apparent new relists: Swartout […]
The Significant Error in Judge Hudson’s Opinion
I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing […]
Key points in Virginia v. Seblius
1. The facial challenge is allowed. See Lopez, Morrison. Salerno distinguished. pp. 7-9. 2. Rejection of the theory that the decision not to purchase federally-mandated is an “economic activity” since the individual will almost certainly purchase health services at some time in the future. “Of course the same reasoning could apply to housing, transportation, and nutritional […]
Health Care Case Coverage
How Appealing has a round-up of early coverage and reaction to today’s health care ruling here. I’ll post my own thoughts on the decision later.
Orin’s Post on Normative and Descriptive Readings of Constitutional Law
Orin writes, We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. Those are indeed […]
Federal Judge Declares Health Care Law Unconstitutional
A federal judge in Virginia has declared the Obama administration’s health care reform law unconstitutional. U.S. District Judge Henry Hudson is the first judge to rule against the law, which has been upheld by two others in Virginia and Michigan. I’m sure my co-bloggers will have further thoughts.
Cato Unbound Discussion on Property Rights and the State
The Cato Unbound website has organized a discussion of property rights and their relationship to the state. The lead essay is by economist Daniel Klein. Here is his main thesis: Libertarians and conservatives say that Obamacare forces you to buy health insurance. Folks of the left are apt to shrug at calling it force. If […]