That’s the gist of this L.A. Times front page article by David Savage, but the headline instead promises Signs of Supreme Court activism worry Reagan administration lawyers. It turns out that the only “Reagan Administration lawyers” they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama […]
Author Archive | David Bernstein
An Example of Academic Out-of-Touchedness
The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days. I was at a Federalist Society student conference chatting with a prominent professor. We […]
The Court’s Legitimacy
Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy. Who, after all, is going to lead the charge against the Court? Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court? […]
SG Verrilli Relies on the Constitution’s Preamble
In his closing remarks at today’s oral argument over the Medicaid expansion, SG Verrilli urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA. His rationale was in part that the people’s democratically elected representatives, after much thought, decided that the ACA was the […]
Democratic Congressman and Senators on Constitutional Authority for the ACA
Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?” Here are a few more pearls of constitutional wisdom from our elected representatives. Rep. Conyers cited the “Good and Welfare Clause” as […]
Has the Pro-ACA Side Come up with a “Limiting Principle?”
Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority […]
Lochner in Today’s Oral Arguments
After all, what’s a controversial Supreme Court case without multiple gratuitous references to Lochner? First, the SG: And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought […]
Jeffrey Toobin: Health Care Law in Grave, Grave Trouble
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine [but not Randy’s, Ilya’s, Jonathan’s or mine!], that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.” Toobin may […]
Scalia: Federal Government is Supposed to be a Government of Limited Powers
As I’ve consistently maintained, the Supreme Court will not uphold the individual mandate if the majority is unconvinced that there is a limiting principle. While we await the transcript of today’s oral argument, we can consider Justice Scalia’s question, as reported by the Washington Post: “Government is supposed to be a government of limited powers,” […]
New York Times Profile of Co-Blogger Randy
The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA. I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich. The standard view in the legal academy for many years has been that Congress’s Commerce […]
The ACA and Mandatory Contraception Coverage
I wonder if folks at HHS were in contact with folks at Justice before they decided to announced a few weeks back that health insurers must cover contraceptives. While this requirement isn’t directly pertinent to the constitutionality of the ACA, it weakens the government’s defense in two extra-legal respects. First, the laws’ defenders want to […]
Can the Federal Government Pass a Compulsory Education Law?
I was trying to think of a good example to illustrate the Federal government’s lack of a general police power as opposed to the states’ inherent police power, with an example that doesn’t implicate serious “substantive due process” concerns. So here goes: All states have compulsory schooling laws, some to age 18, others to age […]
Koch and Cato–The Board
In the process of trying to figure out exactly what is going on in the Koch-Cato dispute, I was struck by one thing: as near as I could figure out, the Kochs, according to Cato itself, had offered a compromise in which each side would choose eight board members. Meanwhile, as of the last board […]
The Congress Can-Do-Whatever-it-Wants Power
As I’ve argued several times before, the Supreme Court’s conservative majority will not uphold the individual mandate if the mandate’s defenders are unable to come up with a limiting principle that will prevent a decision upholding the law from eviscerating any remaining limits on Congress’s power to regulate interstate commerce. (Which is not to say […]
The Individual Mandate Litigation: What’s Lochner got to do with It?
By David Bernstein on March 21, 2012 9:24 pm in Academia, Constitutional History, Constitutional Law, Health Care
I have an op-ed up at Jurist Forum. Here’s how it starts: With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting […]