Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from […]
Archive | June, 2012
National Review Symposium on the Health Care Decisions
For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here: Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also […]
Law School Tuition Over the Last Forty Years
Law school tuitions have climbed dramatically over the last forty years. How dramatically? Paul Campos has some interesting figures in a new paper, The Crisis of the American Law School. From the paper, here’s Harvard’s tuition adjusted for inflation in 2011 dollars since 1971: 1971: $12,386 1981: $15,862 1991: $27,207 2001: $35,817 2012: $50,880 And […]
Do the Court’s Commerce Clause and Necessary and Proper Clause Rulings in the Individual Mandate Case Matter?
By Ilya Somin on June 29, 2012 2:44 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant […]
Coercion, the ACA Spending Clause Opinions, and the Future of Cooperative Federalism
In the spending clause portion of yesterday’s ACA opinions, Justices Kennedy, Scalia, Alito and Thomas offered an interesting perspective that, if ever adopted by a Court majority, could raise serious questions about the viability of the “cooperative federalism.” To begin, let’s assume the principle underlying the limits on the federal government’s spending power, as the […]
Prof. Michael McConnell on the Spending Clause Holding in the Health Care Law Case
Prof. Michael McConnell (Stanford) passes along the following: The Supreme Court’s Spending Clause holding, which commanded seven (!) votes, may be the most important aspect of yesterday’s health care decision, from the perspective of constitutional federalism. For the first time, the Court has held that the federal government may not use the threat of withdrawal […]
Scotusblog: Is this 1936?
Here is my contribution to the Scotusblog symposium on the ACA decision. Some excerpts: Before the ACA decision was announced, many liberal pundits warned that the Supreme Court was on the verge of repeating its mistake in 1936, when the Court revealed that retained a 5-4 majority hostile to broad regulation of economic activity. Now […]
The Obligatory Lochner Reference
In her opinion, Justice Ginsburg writes: In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See, e.g., Carter Coal Co., 298 U.S., at 303–304, 309–310; Dagenhart, 247 U.S., at 276–277; Lochner v. New York, 198 U.S. 45, 64, 25 […]
Careers in Computer Security
One of the things I like about computer security is how uncredentialed the whole field is. Very few senior computer security people started their careers in the field. One of the best I knew started her career as a nurse; others as cops; a few as lawyers. Some even started in computer science. But this […]
SCOTUSBlog Commentary: “Lose the battle, win the war?”
My contribution to the SCOTUSBlog post-decision symposium elaborates on some of the points I made in my early Bench Memos post on the decision. Here are some excerpts: For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a […]
Did Chief Justice Roberts Change His Vote? Perhaps Not.
There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case. My co-blogger David Bernstein has had some good posts on that theory here and here. That explanation is certainly possible. When so many informed court watchers suspect that […]
Five Missing Posts from 11:30am to 4pm
A glitch in our software seems to have made our posts from 11:30am to 4pm today disappear, at least unless you happen to have a direct link. For those wanting to read the full set of our posts on the mandate today, here are the missing posts in order: 1. The Conservative John Roberts (Kerr, […]
Where Richard Friedman and I Agree
By Ilya Somin on June 28, 2012 11:35 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Note the close parallels between my statements in this CBS News report and on the mandate decision, and those of University of Michigan law professor Richard Friedman, a well-known liberal legal scholar. It’s almost as if we coordinated our remarks in advance. But in truth I had no idea what he said until I read […]
Assessing My Individual Mandate Predictions
Now that the individual mandate case has been decided, it’s worth taking a look at what I got right and wrong in making predictions about the case in advance. I think the record is a mixed bag. On the plus side, I was right to insist from early on that this was a close case […]
Thoughts on the Medicaid Spending Clause Decision
While the 26 state plaintiffs ultimately lost the case challenging the constitutionality of the individual mandate, they partially prevailed on the other federalism case decided today: the challenge to provisions of the Affordable Care Act requiring states to massively expand Medicaid coverage or lose all of their federal Medicaid funds. The Supreme Court ruled that […]