Today’s 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold […]
Archive | Commerce Clause
Barney Frank and Ron Paul Introduce Bill that Would Legalize Marijuana Under Federal Law
Democratic Representative Barney Frank and Republican Ron Paul recently introduced a bill that would repeal the federal law banning marijuana: The legislation would eliminate marijuana-specific penalties under federal law, but would maintain a ban on transporting marijuana across state lines. It would allow individuals to grow and sell marijuana in states that make it legal. […]
The individual mandate is neither “necessary” nor “proper”
By David Kopel on May 11, 2011 4:51 pm in Commerce Clause, Constitutional History, Constitutional Law, Individual Mandate, Necessary and Proper
That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument: The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. […]
My Jurist Article on Why the Individual Health Care Mandate is Unconstitutional
By Ilya Somin on May 4, 2011 11:08 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The Jurist has posted my article on “Why the Individual Health Care Mandate is Unconstitutional.” The format allowed me to lay out the case against all three of the federal government’s rationales for the law more fully than in any previous popular press publication. Here’s an excerpt: Twenty-eight states and several private groups have now […]
Interview with Cato’s Ilya Shapiro on the legal challenges to the new federal health control law
By David Kopel on April 20, 2011 6:18 pm in Commerce Clause, Constitutional Law, Health Care, Individual Mandate, Taxing and Spending Clause
Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. On Monday, I interviewed him for 39 minutes about Cato’s litigation program on constitutional issues, his traveling the country during the last year to debate the health control law, and the constitutional issues involved in […]
Health insurance is not ‘commerce’
From 1789 until 1944, the Supreme Court adhered to the original understanding of the Constitution that insurance is not “commerce” that is subject to the congressional power to regulate interstate commerce. A 1944 opinion by Justice Black, Southeastern Underwriters, reversed that approach, while claiming to base its opinion on original understanding. In an article in the […]
The DC District Court Decision Upholding the Constitutionality of the Individual Mandate
By Ilya Somin on February 23, 2011 12:40 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because […]
Federalism and Tort Reform
By Orin Kerr on February 13, 2011 7:43 pm in Commerce Clause, Federalism, Torts, Voting With Your Feet
Cornell lawprof William Jacobson detects a potential contradiction in Republican politicians’ view on constitutional federalism [HT: Steve Bainbridge]. Many of them claim that the Obamacare individual mandate falls outside of Congress’ power, but simultaneously support federally mandated tort reform that would override state tort law: If we are against the federal government forcing us to […]
Akhil Amar’s Defense of the Individual Mandate
By Ilya Somin on February 7, 2011 12:11 am in Commerce Clause, Health Care, Individual Mandate, Taxing and Spending Clause
Yale law professor Akhil Amar is one of the truly great constitutional law scholars of his generation, and I benefited enormously from taking his classes when I was in law school. Unfortunately, his recent LA Times article defending the constitutionality of the Obamacare individual mandate is not an example of his better work. I was […]
Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate
By Ilya Somin on January 31, 2011 8:01 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains […]
More on Boycotts, Inactivity, and the Commerce Clause
At Prawfsblawg, Carlton Larson responds to my critique of his argument that federal regulation of strikes and consumer boycotts are regulations of inactivity similar to the Obamacare individual mandate. Larson doesn’t comment on my discussion of strikes. But he does take issue with my analysis of boycotts, which noted that boycotts qualify as “economic activity” […]
Activity, Inactivity, and Strikes
By Ilya Somin on January 16, 2011 11:49 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
One of the key arguments in Obamacare individual mandate is that the federal government lacks the power to regulate inactivity, and therefore cannot force people to buy products they don’t want, including health insurance. At Prawfsblawg, law professor Carlton Larson argues that the federal government already regulates inactivity because, in some cases, it forbids strikes: […]
Supreme Court Refuses to Hear Potentially Important Commerce Clause Case
By Ilya Somin on January 11, 2011 10:10 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Yesterday, the Supreme Court refused to hear United States v. Alderman, a potentially important Commerce Clause case [HT: Josh Blackman]. In Alderman, the Ninth Circuit Court of Appeals had upheld the constitutionality of a federal statute that banned the possession of body armor by felons. The Ninth Circuit relied on the Supreme Court’s 1977 decision […]
Our Amicus Brief in the Thomas More Law Center Individual Mandate Case
By Ilya Somin on December 30, 2010 10:21 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
For those who may be interested, I have written an amicus brief in Thomas More Law Center v. Obama, one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate. I wrote the brief on behalf of the Washington Legal Foundation and twelve members of the House of Representatives. It is […]
My Appearance on C*SPAN’s Washington Journal
By Randy Barnett on December 19, 2010 4:47 pm in Commerce Clause, Constitutional Law, Health Care, Uncategorized
Here is my discussion of the constitutionality of the individual mandate with Simon Lazarus on C*SPAN’s Washington Journal this morning: I was a little frustrated with the format. Lazarus, who is a perfectly nice man, was able to make long speech-like points, but because the host then moved to a phone call or tweet without […]