As co-blogger Jonathan Adler points out, a new New York Times-CBS poll shows that 68% of the public want the Supreme Court to rule that the individual health insurance mandate is unconstitutional, while 41% want it to invalidate the entire Obama health care reform law. Only 24% want the mandate upheld. Even a slight 48-42 […]
Archive | Federalism
Andrew Koppelman on the Origins of the Case Against the Individual Mandate
By Ilya Somin on May 31, 2012 2:32 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Northwestern University Law Professor Andrew Koppelman has an article in Salon on the origins of the case against the individual mandate, in which he tries to show that Democrats could not reasonably have anticipated that the mandate would run into legal problems, and therefore cannot be blamed for not being more careful in the way […]
First Circuit Unanimously Strikes Down DOMA Section 3
By Dale Carpenter on May 31, 2012 12:12 pm in DOMA, Equal Protection, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and […]
Pitfalls of the Collective Action Theory of Constitutional Federalism
By Ilya Somin on May 29, 2012 10:05 pm in Collective Action Problems, Federalism, Health Care, Individual Mandate
Co-blogger Jonathan Adler points out several weaknesses in the collective action theory approach to interpreting constitutional federalism advocated by a number of academics, most notably Robert Cooter and Neil Siegel. The theory has been used as a tool for defending the constitutionality of the individual mandate, though I have argued that it may actually cut […]
The Search for a Limiting Principle for Federal Power: Collective Action Problems
Many of those who urge the Supreme Court to uphold the constitutionality of the individual mandate recognize that the Court is unlikely to take this step without identifying a “limiting principle” that cabins the scope of federal power in some meaningful way. While some deride the search for a limiting principle as unnecessary, others recognize […]
Jeffrey Rosen’s Proposed Limiting Principles for Federal Power
By Ilya Somin on May 29, 2012 5:44 pm in Collective Action Problems, Commerce Clause, Federalism, Health Care, Individual Mandate
In a recent response to critics of his earlier column on the individual mandate case, Jeffrey Rosen claims that upholding the individual mandate would not lead to unlimited congressional power because “Congress [still] cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective […]
McConnell on “The Liberal Legal Meltdown Over ObamaCare”
By Jonathan H. Adler on May 25, 2012 8:16 am in Federalism, Health Care, Individual Mandate, Uncategorized
In today’s WSJ, Stanford law professor and former federal appellate judge Michael McConnell has an op-ed commenting on the tone and content of much liberal commentary on the individual mandate litigation. It begins: In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal […]
Lochner and the Individual Mandate Revisited
By Ilya Somin on May 23, 2012 3:28 pm in Economic LIberties, Federalism, Health Care, Individual Mandate, Libertarianism
Various defenders of the individual mandate have long argued that if the Court strikes down the law, it is likely to lead to the resuscitation of Lochner v. New York and the invalidation of a wide range of economic regulations. This meme has most recently been taken up by Jeffrey Rosen, who claims that striking […]
Nonlegal Arguments for Upholding the Individual Mandate
By Ilya Somin on May 21, 2012 5:57 pm in Commerce Clause, Conservatism, Constitutional Theory, Federalism, Health Care, Individual Mandate, Public Opinion
Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly […]
The PPACA in Wonderland
By David Kopel on May 18, 2012 11:21 pm in Constitutional Law, Constitutional Theory, Federalism, Health Care, Individual Mandate
That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview […]
If Same-Sex Marriage Is So Popular, Why Does It Lose at the Polls?
The Monkey Cage has an interesting guest post from Georgia State University’s Gregory Lewis examining why initiatives to prohibit same-sex marriage succeed at the polls when public opinion surveys suggest reasonably strong support for same-sex marriage. Among the key points is that support for same-sex marriage varies quite widely by state.
Reducing the Drug War’s Damage to Government Budgets
By David Kopel on May 14, 2012 4:29 pm in Constitutional History, Criminal Law, Federalism, Proposed Legislation, Supreme Court, Tenth Amendment, War on Drugs
That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state […]
The Incoherence of President Obama’s Stance on Gay Marriage
By Jonathan H. Adler on May 10, 2012 12:59 pm in Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, […]
Jonathan Rauch on the Individual Mandate Case
By Ilya Somin on May 7, 2012 2:39 pm in Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
In general, I am a big fan of the work of columnist Jonathan Rauch. Unfortunately, his recent column on the individual mandate case is not one of his better pieces. The problem is not that he comes down on what I think is the wrong side of the issue, but that some of his points […]
Are States Required to Help the Federal Government’s “War on Terror”?
Last month, Virginia enacted a law forbidding state officers, including police, from helping the federal government investigate, surveil, or detain terrorist suspects who are U.S. citizens. This may or may not be good policy. David Rivkin and Charles Stimson argue it’s also unconstitutional. They write: It trenches on the federal government’s war powers and violates […]