In a recent post, I suggested that Obamacare will be almost impossible to repeal through political action. History shows that it is extremely difficult to eliminate entitlements. In addition, repeal would require Republican congressional majorities and a Republican president; I doubt we will get both simultaneously for years to come. Although various state governments and […]
Archive | Commerce Clause
Gail Heriot and Peter Kirsanow on the Akaka Bill
In today’s Wall Street Journal, Gail Heriot and Peter Kirsanow of the US Commission on Civil Rights have an interesting op ed criticizing the Akaka Bill, which I myself criticized on federalism grounds in this post: Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly […]
Federalism and the Akaka Bill
The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive […]
Amar v. Natelson on the constitutionality of Obamacare
By David Kopel on January 27, 2010 1:29 am in Commerce Clause, Constitutional History, Health Care, Originalism
Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.
Comstock and National Security Detentions
By Ilya Somin on January 12, 2010 11:41 pm in Commerce Clause, Federalism, Necessary and Proper, War and Armed Conflict, War on Terror
Co-blogger Ken Anderson asks: Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? […]
Assessing the Comstock Oral Argument
Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” […]
The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate
In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal […]
The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus
By Jonathan H. Adler on December 23, 2009 3:28 pm in Commerce Clause, Congress, Constitutional Theory, Health Care
Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate. Specifically, he quoted the following passage: In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation […]
Senator Hatch & Stuart Taylor on the Constitutionality of an Individual Health Insurance Mandate
By Randy Barnett on December 14, 2009 10:00 am in Commerce Clause, Constitutional Theory, Health Care, Supreme Court
On Friday, Senator Hatch gave a major speech on the floor of the Senate on the unconstitutionality of a federal health insurance mandate that readers may find very interesting. Although the Senator favorably mentions my Heritage legal memorandum and introduced it into the Congressional record, his presentation of the constitutional problems with a mandate is […]
Video of Heritage Session on Constitutionality of Health Care Mandate
By Randy Barnett on December 9, 2009 6:45 pm in Commerce Clause, Constitutional Theory, Uncategorized
Senator Hatch, Eugene Volokh and me.
Regulating Inactivity Under the Commerce Clause
My co-blogger Randy Barnett has posted his very interesting analysis of why he believes that requiring health care insurance is unconstitutional under existing Commerce Clause precedents. A key part of his argument is that requiring health care insurance is not regulating commercial activity because it attempts to regulate inactivity: To assess the constitutionality of a […]
Is Health Insurance Mandate Constitutional?
Head conspirator Eugene Volokh and I will be on a panel today at the Heritage Foundation at 12:30pm discussing the constitutionality of the proposed individual health insurance mandate. Senator Orrin Hatch will deliver opening remarks. I will question the constitutionality of such a mandate; I expect Eugene to be skeptical that a constitutional challenge would […]
Debating the Constitutionality of an Individual Mandate
The latest installment of the Federalist Society’s “Originally Speaking” debate series features UC Irvine Dean Erwin Chemerinsky and Baker & Hostetler partner David Rivkin sparring over the constitutionality of an individual mandate. We’ve had something of a debate over this subject here on the VC as well. Our prior posts are collected here.
How Much of a Difference will the Administration’s New Policy on Prosecuting Medical Marijuana Cases Make?
Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 […]
First Circuit upholds federal ban on juvenile handgun possession
By David Kopel on October 6, 2009 2:02 pm in Commerce Clause, Constitutional History, Criminal Law, Guns
The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional […]