At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall): The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. […]
Archive | Commerce Clause
What Should the Supreme Court do with the Obamacare Case?
By David Kopel on October 3, 2011 1:07 pm in Commerce Clause, Constitutional Law, Health Care, Individual Mandate
That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others. My answer to what […]
Federal District Court in Pennsylvania Strikes Down Individual Mandate
By Ilya Somin on September 13, 2011 3:10 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding […]
Why the Obamacare penalty is not a “tax”
Rob Natelson explains it all in his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it’s a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it’s […]
My RegBlog Post on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 18, 2011 2:35 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject. RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be […]
My Newsday Op Ed on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 17, 2011 2:29 pm in Commerce Clause, Federalism, Necessary and Proper, Taxing and Spending Clause
Newsday has published an op ed I wrote on the 11th Circuit decision striking down the individual mandate. Because of very tight space constraints, I was unable to cover many of the nuances of the decision. But the op ed does summarize my main thoughts on it: Last week’s Eleventh Circuit Court of Appeals decision […]
Distinguishing Wickard
By Jonathan H. Adler on August 14, 2011 12:59 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Another interesting portion of the Eleventh Circuit’s decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court’s opinion notes, the Supreme Court (in Lopez) characterized Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” As a consequence, the Eleventh Circuit concluded, Wickard “provides […]
My SCOTUSblog Post on the Future of the Individual Mandate Litigation
By Ilya Somin on August 10, 2011 4:15 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in […]
What Collective Action Federalism Is and Is Not
By Neil Siegel, guest-blogging on August 9, 2011 9:54 am in Collective Action Problems, Commerce Clause, Federalism
I congratulate Ilya Somin on the arrival of Willow. My daughters stand ready to babysit your beautiful pooch. In this post, I will clarify the theory of collective action federalism by offering four points about what the theory is and is not. First, collective action federalism is not a comprehensive structural account of American constitutional […]
The Theory of Collective Action Federalism
By Neil Siegel, guest-blogging on August 8, 2011 9:58 am in Collective Action Problems, Commerce Clause, Federalism
I thank Eugene Volokh for inviting me to blog about my work in this highly regarded venue. Today, I will present the theory of collective action federalism, which I have developed with Robert Cooter of Berkeley Law in a recent article. Tomorrow, I will clarify what the theory is and is not. Later in the […]
Collective Action Federalism
Like Eugene Volokh, I too look forward to the upcoming guest-blogging stints by Kurt Lash and Neil Siegel. It so happens that I recently reviewed Robert Cooter and Neigl Siegel’s outstanding article “Collective Action Federalism” on Jotwell, a website where legal scholars review important new scholarship. Here’s an excerpt from what I said: Robert Cooter […]
My Jurist Op Ed on the Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on July 1, 2011 3:58 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
The Jurist has just published an op ed I wrote criticizing the recent Sixth Circuit decision upholding the individual mandate: This week, the US Court of Appeals for the Sixth Circuit ruled that the individual mandate of federal health care reform is constitutional. This is undeniably a setback for mandate opponents…. Before this decision, judges […]
The “Presumption of Constitutionality” and the Individual Mandate Cases
In a recent post, co-blogger Orin Kerr argues that the “presumption of constitutionality” accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the […]
Re: Facial vs. As-Applied Challenges to the Individual Mandate
Ilya’s post below addresses an important issue in commerce clause litigation: Whether commerce clause challenges should be treated as facial or as-applied challenges and, if the former, how such challenges should be addressed. I largely agree with Ilya’s post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, […]
Judge Sutton on Facial vs. As-Applied Challenges to the Individual Mandate
In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” […]