In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient: There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the […]
Archive | June, 2012
New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision
By Ilya Somin on June 30, 2012 9:49 pm in Federalism, Health Care, Individual Mandate, Public Opinion
A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin. This is a significantly smaller […]
Insurance for Spoiled Food
The Bernstein family has power, but we’re hosting my in-laws, who don’t. A handy tip for readers who lost power last night: if your food spoils, some insurance companies will reimburse you with no deductible. Our refrigerator failed on its own last week, and USAA sent a check with no hassle. I don’t know how […]
From Marty Lederman’s Mouth to God’s Ears
Georgetown lawprof Martin Lederman had this to say about the undue coercion challenge to the Medicaid expansion back in March: It is one thing to suggest—as litigants in many past Spending Clause cases have—that Congress may not use the lure of its valuable funding to “coerce” the States to spend their own funds outside the […]
Mystery of the Health Care Decision Solved
My friend Tom Kaufman writes: I think I figured out what happened. Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?
A Thought About Chief Justice Roberts
When Roberts was nominated to the Supreme Court, one especially remarkable biographical detail came to light: every one of his friends interviewed by the media, conservative, liberal, and otherwise, swore they had never heard him express any opinion in private conservation on any controversial Supreme Court cases. How could it be that a top Washington […]
So, Speaking of Soccer . . .
OK, nobody actually was speaking of soccer. . . . But I’ve been away from home (and the VC) for a while (six weeks in Italy), and after a 20-hour transatlantic ordeal I come home in the midst of this firestorm about the healthcare decision (about which I have, at the moment, nothing intelligent to say). […]
If the Mandate Is a Tax . . .
I was asked this question last night, and I’m not sure of the answer: If the mandate is a tax, does this mean it could be repealed through the reconciliation process?
Of Silver Linings and Clouds
By Ilya Somin on June 29, 2012 10:07 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s USA Today quotes me on the individual mandate decision as follows: “You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Reasons for Cheer
From James Stewart’s “Common Sense” NYT column: Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on […]
The Chief Gets No Respect
I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision. Last week, in poking fun […]
Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions
By Ilya Somin on June 29, 2012 6:31 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power: The obvious […]
Is the individual mandate a “tax” according to the original meaning?
By David Kopel on June 29, 2012 6:30 pm in Constitutional History, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.
NFIB as Marbury
By David Kopel on June 29, 2012 6:25 pm in Constitutional History, Constitutional Law, Federalism, Individual Mandate, Politics, Spending Clause, Supreme Court, Taxing and Spending Clause, Unconstitutional Conditions
My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that […]