SCOTUSblog has just posted a detailed analysis of today’s decision that I did for them. It’s much more thorough than anything I have been able to put up elsewhere. Here is an excerpt: Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued […]
Archive | Federalism
The Tax Issue is Not Just a Technicality
By Ilya Somin on June 28, 2012 6:09 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Some, including co-blogger Orin Kerr, have argued that today’s ruling that the individual mandate is a tax rests on a mere technicality. The mandate could have been a tax if only Congress had labeled it as such or structured it slightly differently, and so it makes sense for the Court to assume that it is […]
My Initial Critique of the Individual Mandate Decision
We have been having technical difficulties that make it almost impossible for us to post on this site. I apologize to our readers. However, I have posted an initial critique of the Court’s decision as an op ed for the New York Daily News, here: Today’s 5-4 Supreme Court decision upholding the individual health insurance […]
Supreme Court Majority Endorses Activity-Inactivity Distinction
By Ilya Somin on June 28, 2012 11:51 am in Commerce Clause, Federalism, Health Care, Individual Mandate
Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power […]
Larry Solum on the Individual Mandate Decision
Georgetown law professor Larry Solum has an excellent post on the mandate decision, much of which I agree with: Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law. In the extraordinarily unlikely event that there had been a majority opinion authored by one of the […]
The Mandate Upheld as a Tax
We do not yet have the mandate opinion (or at least I don’t). But apparently it was upheld on a 5-4 vote, with Chief Justice John Roberts joining the four liberal justices. Much more surprisingly, it was apparently upheld on the grounds that it is a tax. This was the least likely basis for a […]
Final Thoughts on the Eve of the Individual Mandate Decision
Over the last year, I have written an academic article, several amicus briefs, and countless blog posts and op eds about the individual mandate case. Whether I said anything useful or not is for others to judge. But, as a constitutional federalism scholar and one who had long argued for the need to enforce constraints […]
Law Professors Obsessing Over the Individual Mandate
The Noncuratlex blog recently did a post making fun of constitutional law professors’ obsession with the individual mandate case. It includes shoutouts to the VC, co-blogger Randy Barnett, Laurence Tribe, and Metta World Peace: RENO, NEVADA (Press International), June 25, 2012: The husbands and wives of the nation’s estimated 543 married Constitutional Law professors collectively […]
Blogging on the Individual Mandate Decision at SCOTUSblog
This is just to let readers know that, in addition to blogging about the expected individual mandate decision here at the VC, I will also be blogging about it at SCOTUSblog. I will be joining a large group of legal scholars on both sides of the issue there, including co-bloggers Jonathan Adler, Randy Barnett, David […]
Ezra Klein on “Motivated Reasoning” and the Struggle Over the Individual Mandate
In a widely read recent New Yorker article, Ezra Klein argues that both the rise of conservative opposition to the individual mandate and the greater than expected success of the constitutional challenges to the law is largely a result of “motivated reasoning”: On March 23, 2010, the day that President Obama signed the Affordable Care […]
Recent Poll of Supreme Court Experts Finds that Most Expect the Court to Strike Down the Individual Mandate
A June poll of Supreme Court experts finds that, on average, they predict a 57% chance that the Court will strike down the individual mandate: A new insider survey of 58 legal experts conducted after the oral arguments concluded found that most predict that the court will strike down the so-called individual mandate, a central […]
How Much Does the Individual Mandate Case Matter?
Co-blogger Orin Kerr asks an important question. How much effect will the individual mandate decision really have? To some extent, we can’t really know. It depends in part on the Supreme Court’s reasoning in upholding or striking down the mandate, and also on future political developments, including who gets to make the next several appointments […]
Health Care Cases Update
I am right now following the Supreme Court’s announcement of the opinions to be issued today. If the health care cases are among those that come out, I will post an analysis as quickly as possible. Stay tuned…. UPDATE: The Court has finished announcing opinions, and the health care cases were not among them. Neither […]
The Other Big Health Care Case Before the Supreme Court
With all the hoopla surrounding the individual mandate case, the media and most commentators have often given short shrift to the other big health care case the Supreme Court is about to decide: the constitutionality of the Obamacare’s massive expansion of Medicaid. Constitutional law scholar David Oedel recently posted this interesting article on the subject, […]
The Broccoli Argument Isn’t About Broccoli
Yesterday’s New York Times has an interesting article about how the broccoli mandate analogy came to play a major role in the cases challenging the constitutionality of the Obamacare individual health insurance mandate. It traces the analogy back to various libertarian and conservative sources and suggests that broccoli is a key reason why the mandate […]