Back in October 2009, the Obama Justice Department issued a memo that some interpreted as discouraging federal raids on medical marijuana dispensaries operating in states where medical marijuana is permitted under state law. I pointed out at the time that the memo imposed few if any genuine restrictions on federal prosecution of medical marijuana producers. […]
Archive | June, 2011
Eight Things to Know About Yesterday’s Sixth Circuit Decision
Volokh readers will remember when two widely-respected conservative Court of Appeals judges, Judge Easterbrook and Judge Posner were on a unanimous Seventh Circuit panel denying both the Due Process and Privileges or Immunities challenge to Chicago’s hand-gun ban. One year later, the Due Process challenge was upheld 5-4 in McDonald v. Chicago. My friend and […]
Court to Consider Administrative Compliance Orders
The Supreme Court accepted cert on two more cases on Tuesday. One of these cases, Sackett v. EPA, could be quite significant for administrative law. The case arises out of an all-too-typical wetlands regulation dispute. The Sacketts own a lot in a residential subdivision upon which they planned to build a home. After they graded […]
The Presumption of Constitutionality Revisited
In his response to my post on the mandate cases and the presumption of constitutionality, Orin Kerr argues that the presumption applies to all cases where courts consider the constitutionality of congressional legislation. Orin recognizes that the Supreme Court majority in fact fails to even mention the presumption in many controversial cases where it strikes […]
More on the Presumption of Constitutionality
In his post below, my co-blogger Ilya Somin concludes that courts should not apply the presumption of constitutionality to the individual mandate: In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the legislature is passing judgment on the scope […]
Good News on Nominations
The Washington Post reports that the Senate is willing to relinquish some of its authority to block minor executive appointments. Yesterday the Senate voted to reduce the number of executive appointments subject to Senate confirmation. The resolution affects approximately 170 of the 1,400 or so positions currently subject to Senate confirmation. The Senate is also […]
Is the Debt Limit Constitutional?
The Huffington Post reports that some Democrats are urging the White House to ignore the debt ceiling on the grounds that it is unconstitutional. The basis for this argument is Section 4 of the Fourteenth Amendment, which provides “The validity of the public debt of the United States, authorized by law, . . . shall […]
Lochner and Child Labor Laws
One of the great oddities of discussions of Lochner v. New York is that the case consistently gets blamed for interfering with child labor laws. A few examples: After discussing Lochner’s support for freedom of contract, a public policy textbook by Professor Thomas A. Birkland states that “even the most basic child labor laws were […]
The “Presumption of Constitutionality” and the Individual Mandate Cases
In a recent post, co-blogger Orin Kerr argues that the “presumption of constitutionality” accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the […]
Re: Facial vs. As-Applied Challenges to the Individual Mandate
Ilya’s post below addresses an important issue in commerce clause litigation: Whether commerce clause challenges should be treated as facial or as-applied challenges and, if the former, how such challenges should be addressed. I largely agree with Ilya’s post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, […]
R.I. Legislature Passes Civil Unions Bill
And manages to do what nobody else has done: unite supporters and opponents of same-sex marriage. Marriage Equality Rhode Island says it establishes “second-class citizenry.” The National Organization for Marriage says it is “disappointing and dangerous.” Caught in the middle were legislators, including the openly gay head of the state house, and Governor Lincoln Chafee […]
The Individual Mandate and the Presumption of Constitutionality
One of the emerging criticisms of the Sixth Circuit opinion upholding the individual mandate — and especially Judge Sutton’s separate opinion — is that the Sixth Circuit erred because the individual mandate should be presumed unconstitutional. Unless Supreme Court precedent is so clear that it compels a holding that the statute is constitutional, the argument […]
In Praise of the Cert Pool . . . dot com
Now that the real business of October Term 2010 is over, I just wanted to say a few words in praise of the cert pool. No, not that cert pool. The certpool.com, a website run by Austin appellate lawyer Don Cruse that tracks the progress of petitions by federal courts of appeals and by state […]
Judge Sutton on Facial vs. As-Applied Challenges to the Individual Mandate
In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” […]
Today’s Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on June 29, 2011 6:52 pm in Commerce Clause, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold […]