Author Archive | David Bernstein

12/2010: “I’ve been following the debate both at the VC and elsewhere, and find myself somewhat amused at the law professor conceit that the constitutionality of the individual mandate will be determined based on whether the ‘best’ interpretation of USSC precedent supports it or not.” Before the litigation, the wide consensus was that the “best” […]

I was going to write a post suggesting that Roberts’s vote may have come out the other way if Gonzales v. Raich had come out the other way (it didn’t because Scalia and Kennedy voted with the majority). University of San Diego’s Michael Ramsey beat me to it (reprinted with permission): In my previous post […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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.”

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 […]

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 […]