The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post: Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan. The suit […]
Archive | Commerce Clause
Thoughts on the Federal District Court Ruling Refusing to Dismiss the Virginia Health Care Lawsuit
By Ilya Somin on August 2, 2010 1:09 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Spending Clause
Federal District Judge Henry Hudson’s opinion refusing to dismiss Virginia’s lawsuit challenging the constitutionality of the Obama health care plan has several interesting aspects. The suit focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by […]
AZ Boycott and the Constitution:
Given that we’re deep into law school exam periods, here’s today’s question (“snatched,” as they say, “from today’s headlines”): The State of Arizona, you may assume, has passed controversial legislation regarding the legal status of immigrants in the State. The City Council of Los Angeles, protesting the impact of the Arizona law, declares that it […]
Drawing Lines in the Commerce Clause Debate on Health Care Reform
I’ve generally stayed at the periphery on the debate over the constitutionality of health care reform, mostly because it’s not something that I particularly enjoy blogging about. As I see it, a lot of the blogging about the legal issues are a weird mix of actual legal analysis and efforts to influence the broader political […]
Interview on the Healthcare Channel
Here are 2 YouTube videos of my recent interview for the Healthcare Channel. In the first, I discuss the unconstitutionality of the individual health insurance mandate under the Commerce Clause and the tax power. Those who want a close examination of how the mandate runs afoul of current Commerce Clause doctrine should look at my […]
A Quick Response to Randy on the Use of “Unprecedented”
My co-blogger Randy asks for my explanation of part of a blog comment I left over at Prawfs on his use of “unprecedented.” To fill in readers, I was responding to a post that began: Randy Barnett is not just a great scholar; he’s also a great lawyer. Maybe someone else beat him to it, […]
In What Sense is the Personal Health Insurance Mandate “Unconstitutional”?
When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that […]
A Better Question
In light of David K.and Ilya’s posts on the constitutionality of the health care mandate, let me propose a better question to ask. It’s a little more complicated, but I think it will be more illuminating. Here’s the idea. Instead of asking experts “Is the health care mandate constitutional?,” we should ask experts this question: […]
A Message from/to Rick Hills
By Randy Barnett on March 28, 2010 7:18 pm in Commerce Clause, Constitutional Theory, Federalism, Fourteenth Amendment
I thought Volokh readers might enjoy an email exchange I had earlier today with NYU lawprof Roderick Hills earlier: Hi Randy — I thought I’d send along a recent blog post at Prawsblog that gives you, Cato, Ilya, etc some flak in a good-natured way. (Brian Galle also has a post on health care federalism […]
“Federalist Society Types” Were Committed to Judicial Enforcement of Federalism Long Before Obamacare
By Ilya Somin on March 25, 2010 10:46 pm in Commerce Clause, Federalism, Federalist Society, Health Care, Taxing and Spending Clause
University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most […]
Lawsuits Against the Health Care Bill
The Publius blog a helpful post linking information on the various lawsuits recently filed against the Obama health care bill. In addition to the suit filed by 13 states and a separate suit by the state of Virginia, there is a little-noticed lawsuit challenging the individual mandate brought by the conservative Thomas More Law Center […]
More on the Chances Courts Would Strike Down the Individual Mandate
Two quick responses to my co-blogger Jonathan Adler below on the question of whether the courts would strike down the individual mandate. 1) Jonathan focuses on the chances that the Supreme Court would do something surprising and strike down the mandate. But I assume he agrees that to get the case before the Supreme Court, […]
What Will Courts Do with the Individual Mandate?
Like Orin, were I forced to make a prediction, I would predict that the individual mandate will survive judicial review. Federal courts have been quite reluctant to strike down federal statutes on enumerated powers grounds for quite some time, and the individual mandate is a larger and more consequential piece of legislation than those invalidated […]
What Are the Chances that the Courts Will Strike Down the Individual Mandate?
With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate […]
Is the tax power infinite?
By David Kopel on March 22, 2010 8:05 pm in Commerce Clause, Congress, Constitutional History, Economic LIberties, Federalism, Guns, Health Care, Necessary and Proper, Politics, Supreme Court, Taxes
One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. Jack […]