I’d schedule a new vote in the House on the individual mandate, but replace the “penalty language” with language specifically acknowledging that the “penalty” is actually a tax. If the Democrats vote “aye,” they’ve acknowledged breaking the Obama pledge not to raise taxes on the middle class. If the Democrats–specifically those who already voted for […]
Archive | June, 2012
World Not to End: Women, Minorities, Benefit Most
In an interesting twist on the satirical “World to End: Women, Minorities Hardest Hit” headline, the Huffington Post, announcing the survival of Obamacare, non-satirically proclaims: WINNERS: REAL PEOPLE, WOMEN, MINORITIES, both implying that women and minorities are of special concern, and (inadvertently) that they are not “real people.”
Three Excellent Posts on Aspects of the ACA Case
Larry Solum explores whether the majority view that the individual mandate is beyond the Commerce Power is “precedent” or “dicta.” Steve Vladeck on whether CJ Roberts engaged in a “Marbury moment,” sacrificing immediate victory against a political adversary to win the long-term war. Rick Hills on the absurdity of the tax argument. (Fwiw, I’ve consistently […]
“If you want this robe, you’ll have to pry it from my cold, dead hands”: Justices Retiring Later, Often Waiting for a Change in Presidents
As people discuss whether Justice Roberts avoided politics by siding with the left side of the Court or instead yielded to political pressure to change his vote, I want to point to an article that I posted on SSRN a couple of days ago. It shows that Supreme Court justices do tend to act politically […]
But Obama Said It Wasn’t A Tax — Was the Supreme Court Unfair or Unprincipled for Saying It Was?
Some conservative opponents of the Affordable Care Act raise an objection to upholding the Act under the taxing power that goes something like this: It is unfair that President Obama denied that the mandate was a tax to get the legislation passed, but then the Court allowed the mandate to be labeled a tax for […]
My SCOTUSblog Discussion of the Individual Mandate Decision
By Ilya Somin on June 28, 2012 7:08 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
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 […]
Ginsburg is Right on the Commerce Clause, but for the Wrong Reasons
As perhaps the only law professor in the country who teaches/studies health law who has not published something on the ACA case, I’ve decided to contribute my two cents today. In today’s opinions, on the Commerce Clause question, the Justices tangled primarily over whether it matters if Congress regulates “activity” that affects interstate commerce – […]
More Hints that Roberts Switched his Vote
Reader Stuart Buck provides more detail as to why the dissent reads like a majority opinion (see also Deborah Pearlstein at Balkanization): 1. The dissent has a whole section on severability that is completely beside the point except on the assumption that the mandate had been struck down, and now “We” have to decide whether […]
The Tax Issue is Not Just a Technicality
By Ilya Somin on June 28, 2012 6:09 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Some, including co-blogger Orin Kerr, have argued that today’s ruling that the individual mandate is a tax rests on a mere technicality. The mandate could have been a tax if only Congress had labeled it as such or structured it slightly differently, and so it makes sense for the Court to assume that it is […]
Freedom of Speech and Knowing Falsehoods
United States v. Alvarez, the Stolen Valor Act case, dealt with an important and recurring First Amendment question: When may the government ban lies — not just innocent mistakes, or statements that wouldn’t reasonably be understood as factual assertions (e.g., fiction, parody, or obvious hyperbole), but knowing falsehoods? That question arises in a wide range […]
My Initial Critique of the Individual Mandate Decision
We have been having technical difficulties that make it almost impossible for us to post on this site. I apologize to our readers. However, I have posted an initial critique of the Court’s decision as an op ed for the New York Daily News, here: Today’s 5-4 Supreme Court decision upholding the individual health insurance […]
SCOTUSBlog Post-Decision Symposium
SCOTUSBlog has begun posting contributions to its post-decision symposium on NFIB v. Sebelius. Among those with contributions thus far are Laurence Tribe, Alan Morrison Ricahrd Epstein, and our own Randy Barnett. More conspirators will follow (in fact, I just sent mine in — so now I can go read the others!). UPDATE: Here are posts […]
The Conservative John Roberts
I suspect a lot of conservative readers are pretty upset with Chief Justice Roberts right now. The position that the mandate is unconstitutional had become the standard Republican position, echoed by nearly every prominent conservative whether or not they know anything about constitutional law. So there will be a lot of folks on the right […]
Record traffic here at the Conspiracy
We’re dealing with a flood of traffic here at VC — not just a record, but double our previous record. So, while things look fine to you, the new posts our cobloggers are writing are slow to appear on the home page. Stand by, and keep checking back!
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 […]