Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text: [A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is […]
Archive | Commerce Clause
New Books on the Obamacare Case
By Ilya Somin on August 12, 2013 11:40 am in Commerce Clause, Health Care, Individual Mandate, Necessary and Proper
A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been […]
Libertarianism and the Supreme Court
By Ilya Somin on July 29, 2013 6:14 pm in Commerce Clause, Federalism, Libertarianism, Property Rights, Supreme Court
Simon Lazarus of the liberal Constitutional Accountability Center is correct to point out that the Supreme Court’s decisions have trended in a somewhat libertarian direction over the last year. I also agree with many of co-blogger Randy Barnett’s explanations for why this has happened. In addition to the cases cited by Lazarus, it’s also worth […]
Republicans Dispute Federal Power to Regulate Abortion
By Will Baude on July 25, 2013 5:03 pm in Abortion, Commerce Clause, Federalism, Fourteenth Amendment
Politico has a story about Marco Rubio’s attempted sponsorship of federal anti-abortion legislation. Apparently the bill is being delayed, however, by a dispute about federal power to regulate abortion: Rubio and 27 other Republican senators signed onto a bill from Sen. Tom Coburn (R-Okla.) in 2011 that would require lawmakers to point to which piece […]
Indian Commerce Clause in the Supreme Court
By David Kopel on July 1, 2013 7:43 pm in Child Protection, Commerce Clause, Constitutional History, Constitutional Law, Federalism, Racial Discrimination, Supreme Court
Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins: This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified […]
“To Regulate” Not “To Prohibit”
Barry Friedman of New York University School of Law and Genevieve Lakier of the University of Chicago Law School have an interesting new paper on the meaning of “regulate” as used in the Commerce Clause, “‘To Regulate,’ Not ‘To Prohibit’: Limiting the Commerce Power.” Here’s the abstract: Today it is taken for granted that Congress’s […]
Why maximal enforcement of federal gun laws is not always a good idea
By David Kopel on April 26, 2013 4:27 am in Commerce Clause, Congress, Constitutional Law, Criminal Law, Federalism, Guns, Immigration, Necessary and Proper, Supreme Court, War on Drugs
A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate: The Manchin-Toomey amendment was supported […]
My Review of Einer Elhauge’s Obamacare on Trial
By Ilya Somin on March 11, 2013 4:45 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some […]
Treaties, the Law of Nations, and Foreign Commerce
By Eugene Kontorovich on January 13, 2013 3:50 pm in Commerce Clause, Constitutional Law, International Law, Textualism, Treaties, War and Armed Conflict
I’m delighted to see Rick Pildes will be guest-blogging, and the exchange with Nick on the Treaty Power will be a treat. I would invited them to consider an aspect of the question that has long interested me: What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All […]
Turning Federalism Right-Side Up – My Review of Michael Greve’s The Upside-Down Constitution
By Ilya Somin on December 11, 2012 10:45 am in Commerce Clause, Constitutional Law, Constitutional Theory, Federalism, Necessary and Proper, Taxing and Spending Clause
My review of Michael Greve’s important new book, The Upside-Down Constitution is about to be published in Constitutional Commentary, and is now available on SSRN. Here is the abstract: Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the […]
The Bar Review version of NFIB v. Sebelius
By David Kopel on July 10, 2012 2:52 pm in Commerce Clause, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.
Fifth Circuit Holds Federal Retroactive Sex Offender Registration Statute Sometimes Exceeds Article I Powers
The case is United States v. Kebodeaux (5th Cir. July 6, 2012) (en banc): While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was […]
A Simple Solution to the Holding vs. Dictum Mess
By Ilya Somin on July 2, 2012 3:47 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself […]
Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions
By Ilya Somin on June 29, 2012 6:31 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power: The obvious […]
Do the Court’s Commerce Clause and Necessary and Proper Clause Rulings in the Individual Mandate Case Matter?
By Ilya Somin on June 29, 2012 2:44 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant […]