David Schraub: Professor Kerr also expresses his discomfort with “the propriety of placing such views [after upholding a law, nothing that the law in question is a bad law and should, in a world of better constitutional law, be held unconstitutional] in the Federal Reporter instead of a law review or published speech.” I strongly […]
Author Archive | David Bernstein
Jewish Life in Poland Before World War II
In honor of Holocaust Remembrance Day, I’m posting for the first time in a while a link to my grandmother’s memoir of youth in Poland from 1905-1921, giving the relatively rare perspective of a poor Jewish girl from a religious but relatively worldly family (e.g., contrary to stereotype, my great-grandmother was educated, and my grandmother […]
Bleg: Buyers’ Agent in Rockville, MD Area
If any of our readers can recommend a good buyer’s real estate agent in the Rockville area, please leave a comment below (might as well make the recs public for the benefit of others). I’m less in need of a recommendation of someone “nice”, and more interested in a savvy shark type. Thanks.
Berman on the Unconstitutionality of the ACA’s Medicaid Provisions
By David Bernstein on April 13, 2012 7:45 pm in Constitutional Law, Constitutional Theory, Unconstitutional Conditions
Over at Balkinization, University of Texas law professor Mitch Berman has an elegant post explaining why he thinks the Medicaid provisions of the Affordable Care Act are unconstitutional. Put as briefly as possible, he argues that the states are not being compelled to accept and spend the money, but they are being coerced, and this […]
The Lochner Awards
Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice […]
Correcting Jonathan Cohn on the New Deal Cases
Cohn in TNR: I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since […]
The Washington Post on Lochner and The ACA
By David Bernstein on April 9, 2012 7:54 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, […]
The “Taint of Social Darwinism”
The New York Times has up a post by Philip Kitcher, John Dewey Professor of Philosophy at Columbia University, on Social Darwinism. Kitcher is eager to reach the conclusion that the GOP’s budgetary policies are “Social Darwinist”, and in service to that agenda, or perhaps because his research on the matter isn’t up-to-date, her presents […]
Holder on the Presumption of Constitutionality
From the Attorney General’s letter to the Fifth Circuit: Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress. 2. In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, […]
Kevin Drum: Obama “Sloppy”
I agree with Kevin Drum that criticism of the imprecision of Obama’s rhetoric regarding the Supreme Court on Monday and Tuesday is something of a tempest in a teapot. But I also agree with Drum when he writes: Generally speaking, I’ve been a little surprised at how careless Obama has been on all this. His […]
Ridiculous Supreme Court Pronouncements
All the talk from the left about how absurd it would be for the Supreme Court to invalidate the ACA on commerce clause grounds has made me think about ridiculous Supreme Court reasoning. And when I say ridiculous reasoning, I mean just that; not that I necessarily even object to the outcome of the case, […]
Judicial Activism for Me but Not for Thee
Guess who wrote the book described in this advertising blurb: America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. […]
More on Koppelman on Federalism
Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case. Just a few points: […]
Obama on Lochner v. New York
President Obama said the following today when asked about the constitutional litigation over the ACA: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — […]
Koppelman on Health Care and Child Labor
By David Bernstein on April 2, 2012 1:49 am in Constitutional History, Constitutional Law, Health Care
My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes: The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “all […]