Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with […]
Archive | Commerce Clause
From Judge Hudson’s Pen to Justice Scalia’s Ear
Many critics of Judge Hudson’s opinion in Virginia v. Sebelius have shorted his discussion of the Necessary and Proper Clause. (Even some of us who support the opinion have accepted this critique.) But Brooklyn Law’s Jason Mazzone suggests Judge Hudson’s critics are misreading his opinion, which was written more for Justice Scalia than legal academics. […]
New York Times Room for Debate Blog Forum on Today’s Individual Mandate Decision
By Ilya Somin on December 13, 2010 9:50 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Sports and Games, Taxes, Taxing and Spending Clause
The New York Times Room for Debate blog has posted a forum where various scholars weigh in on today’s district court decision striking down the individual mandate. It includes contributions by co-blogger Randy Barnett and myself. My piece briefly discusses the Commerce Clause and Tax Clause aspects of the ruling: Judge Henry Hudson’s decision today […]
Limits, “Significant” Limits, and the Commerce Clause
By Ilya Somin on December 3, 2010 2:48 am in Commerce Clause, Federalism, Health Care, Individual Mandate
In his most recent post in our exchange about the individual mandate and the Commerce Clause, Orin distinguishes between a conception under which Congress’ commerce power is “not unlimited” and one where it is “significantly limited.” He argues that the Court’s jurisprudence endorses the former, but not the latter. In my view, however, concluding that […]
Assumptions and “Activities” in Commerce Clause Jurisprudence
By Ilya Somin on December 2, 2010 11:29 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
In his response to my post on why going without health insurance doesn’t qualify as an “activity” that Congress can regulate under the Commerce Clause, Orin Kerr claims that my reasoning “begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of ‘activity’ in order […]
Why Going Without Health Insurance Isn’t an “Activity”
Current US Supreme Court Commerce Clause precedent holds that Congress can regulate almost any “economic activity” and most “noneconomic activities” as well. The Obamacare individual mandate, however, seems to regulate inactivity – notpurchasing a product. Both Judge Steeh in the Thomas More Law Center decision and Judge Moon in the recent Liberty University ruling argue […]
District Court Upholds Individual Mandate Against Challenge Filed by Liberty University
By Ilya Somin on December 1, 2010 10:45 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Spending Clause, Taxes, Taxing and Spending Clause
Yesterday, federal district Judge Norman Moon of the Western District of Virginia upheld the Obamacare individual mandate against a constitutional challenged filed by Liberty University and several private plaintiffs. For the most part, Judge Moon’s reasoning closely follows that of Michigan district Judge George Caram Steeh in the recent Thomas More Law Center decision. Both […]
My Richmond Times-Dispatch Op Ed on the Obama Health Care Plan Individual Mandate Litigation
By Ilya Somin on November 8, 2010 2:34 am in Commerce Clause, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxing and Spending Clause
Yesterday, I published an op ed on the state of the individual mandate litigation in the Richmond Times-Dispatch: When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs […]
Commerce in the Commerce Clause: A Response to Jack Balkin
By David Kopel on November 4, 2010 6:39 pm in Commerce Clause, Constitutional History, Economy, Originalism
A recent issue of the Michigan Law Review features Jack Balkin’s article Commerce. (109 Mich. L. Rev. 1 [2010].) The article argues that in the original meaning of the Constitution, “commerce” was understood to include a broad variety of social relationships, including relationships that had nothing to do with economic activity. Accordingly, writes Balkin, the original meaning […]
The Florida District Court Decision Rejecting the Federal Government’s Motion to Dismiss the Case Against the Individual Mandate
By Ilya Somin on October 14, 2010 5:42 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxes, Taxing and Spending Clause
There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate brought by 20 states and the National Federation of Independent Business. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts […]
Kopel comment on states’ victory on health control lawsuit.
By David Kopel on October 14, 2010 5:06 pm in Commerce Clause, Congress, Constitutional Law, Health Care, Individual Mandate, Spending Clause, Standing, Taxes, Taxing and Spending Clause, Tenth Amendment
My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum. The court entirely rejected the administration’s claim that the penalty for disobeying […]
Michigan District Court Upholds Individual Mandate Against Challenge by the Thomas More Law Center
By Ilya Somin on October 7, 2010 6:19 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Michigan federal district Judge George Caram Steeh just issued an opinion upholding the Obama health care plan’s individual mandate against a challenge by the conservative Thomas More Law Center and several individual plaintiffs who refuse to purchase health insurance by 2014 as the mandate requires. This is the first opinion issued on the merits in […]
Some Tentative Thoughts on the Constitutionality of the Individual Mandate Under Current Supreme Court Doctrine
I haven’t blogged any detailed thoughts on the constitutionality of the individual mandate, as I’m not an expert in the Commerce Clause or the Necessary and Proper Clause. But I’ve been pondering some of the issues, and I have some tentative thoughts on the constitutionality of the mandate based on current Supreme Court doctrine that […]
Gonzales v. Raich and the Individual Mandate
By Ilya Somin on October 5, 2010 1:10 am in Commerce Clause, Federalism, Health Care, Individual Mandate
The Supreme Court’s 2005 decision in Gonzales v. Raich ruled that Congress’ power to regulate interstate commerce gives it the power to ban possession of medical marijuana that had never crossed state lines or been sold in any market anywhere. It was easily the broadest-ever Supreme Court interpretation of the Commerce Clause. When I first […]
Our Amicus Brief in the Virginia Case Challenging the Constitutionality of the Obama Health Care Plan
By Ilya Somin on October 4, 2010 4:07 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause
Today, we filed an amicus brief in Virginia v. Sebelius, one of the cases challenging the constitutionality of the Obama health care plan’s individual mandate, which requires nearly all Americans to purchase health insurance by 2014 or pay a fine. I wrote the brief on behalf of the Washington Legal Foundation, a leading pro-free market […]