From the Weekly Standard Blog: A ballot measure that StateImpact Ohio (a creation of local public media and NPR) describes as “a referendum on a constitutional amendment…aimed at keeping the national health care reform law from taking [e]ffect” won in all 88 counties in Ohio. In 81 of the counties, it won by a margin of at least […]
Author Archive | Randy Barnett
Next up: The Supreme Court
Well, we now have the last Circuit Court of Appeals decision to digest before hearing later this week or next whether the Supreme Court will take up the challenge and what question will be presented to the Court. Assuming it does, there will then be merits briefs and oral argument. But first, some brief […]
Supreme Court to Conference ACA Challenges on November 10th
Lyle Denniston reporting on ScotusBlog: The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10. Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session. Although […]
Upcoming talks
Lately, I have been remiss about announcing where I am speaking, so here are three upcoming talks or debates on the constitutionality of the Affordable Care Act: Monday, October 24th (tomorrow) at 11:50am: Temple Law School (Federalist Society) Wednesday, November 16th at 4:00pm: Drexel School of Law (American Constitution Society & Federalist Society) Wednesday, November […]
FINO Republicans: Federalists in Name Only
Over the summer I criticized a House Republican medical malpractice reform as “fair-weather federalism” in this op-ed in the Washington Examiner: Tort reform and the GOP’s fair-weather federalism. Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new “jobs” bill. On today’s NRO, attorney […]
The Health Care Lawsuits Timing
Lyle Denniston has an interesting post on SCOTUSBlog about the timing of the various lawsuits. It is too complex to excerpt here without copying the whole post. So, if you are interested, click here.
What About Wickard?
A few weeks ago, I blogged about oral argument in the DC Circuit Court of Appeals in the Seven-Sky v. Holder case. In my post I expressed some concern about a colloquy between Judge Silberman and Ed White, counsel for the American Center for Law & Justice, about the scope of Congressional power upheld in […]
The Supreme Court Should Remand the Affordable Care Act to Congress
Like David, I too was invited to contribute to the new Scotusblog Community on the question of what the Supreme Court should do with the Affordable Care Act. Rather then simply repeat my constitutional arguments, I took a different tack: The Supreme Court should remand the Affordable Care Act to Congress for its further consideration. […]
Breaking: Government files petition for cert in Eleventh Circuit case
Minutes ago, the Solicitor General filed its petition for cert in the Florida v. HHS case from the Eleventh Circuit. Earlier this morning, the state Attorneys General filed their cert petition with some very interesting claims, including a request that the Court reconsider its 1985 decision in Garcia v. San Antonio Metropolitan Transit Authority. Just […]
NFIB Cert Petition and the Anti-Injunction Act
This morning, the National Federation of Independent Business filed with the Supreme Court a petition for a writ of certiorari to reverse the Eleventh Circuit’s ruling that the individual insurance mandate it held to be unconstitutional could be severed from the rest of the Affordable Care Act. With regard to severability, the legal issue is […]
Oral Argument in the DC Circuit Mandate Case
Last Friday, I attended the oral argument in the Seven-Sky v. Holder case in the Court of Appeals for the DC Circuit. There has been very little press attention paid to this hearing, most likely because the press was anticipating important developments in the Eleventh Circuit case involving the 26 state Attorney’s General and the […]
“Saved by the Militia”: My NRO Column After 9/11
On this tenth anniversary of 9/11, I am in New York, staying at a hotel in Time Square. On the train to the City, dogs swept the train in Philly, and another K-9 team boarded in Newark to ride to Penn Station. Penn Station has a detachment of national guard with automatic weapons. Security here […]
Two Interesting But Entirely Unrelated Posts
I have been working on a new edition of my constitutional law casebook and traveling this summer, so have not had time for much blogging. Now I am getting organized for my Contracts course at Penn. Still, I thought I would break radio silence by passing along links to two unrelated blog posts I found […]
Nine and a Half Amendments in Some Copies of the Bill of Rights?
I enjoy reading the political campaign commentary of Jim Geraghty of National Review, as well as his daily Morning Jolt email newsletter (available for free email subscription). Today, the first part of the Morning Jolt concerned right blogospheric reaction to Republican presidential candidate Herman Cain’s comments about Muslims and religious freedom on Fox News Sunday […]
Jack Balkin’s Interaction Theory of “Commerce”
In my paper, Jack Balkin’s Interaction Theory of “Commerce,” I reply to his originalist analysis of the Commerce Clause that he offered in his Michigan Law Review article, which is based on a chapter of his forthcoming book, Living Originalism. Since my paper was presented at a symposium on his book, Jack has revised his […]