In 2010, the Supreme Court unanimously held that Carol Anne Bond had standing to challenge her conviction under the Chemical Weapons Convention Implementation Act of 1998 for trying to poison her husband’s lover. On remand, the U.S. Court of Appeals for the Third Circuit rejected her constitutional challenge to the Act for exceeding the scope […]
Archive | Federalism
Federalism, Immigration, and Interjurisdictional Competition
Temple law professor Peter Spiro has an interesting New York Times column arguing that supporters of immigration should not fear a Supreme Court decision upholding Arizona’s draconian anti-illegal immigrant law, because interjurisdictional competition is likely to take care of the problem. By contrast, he fears that if the Court strikes down the law, the result […]
Mankiw on Jurisdictional Competition
Greg Mankiw has a good column explaining why competition among governments produces benefits much like competition among firms. This is one of the arguments for federalism. Yet Mankiw also explains why what some conservatives see as a feature of federalism strikes some liberals as a bug. While conservatives embrace governmental competition, liberals have good reason […]
Post-argument debate on the constitutionality of Obamacare
By David Kopel on April 18, 2012 12:00 am in Commerce Clause, Constitutional History, Constitutional Law, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.
Larry Lessig on the Politics of the Supreme Court’s Federalism Jurisprudence
By Ilya Somin on April 15, 2012 11:30 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation: The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. […]
Lying in the Bed We’ve Made
Conor Friedersdorf has a hard time taking seriously many commentators who complain a decision striking down the individual mandate would be an unprecedented exercise of “judicial activism.” I don’t doubt that movement liberals will be upset if the individual mandate is struck down. But what exactly would the reaction against such a decision look like? […]
Can Congress Mandate the Japanese to Buy Detroit Cars? – The Commerce Clause and Foreign Commerce
By Eugene Kontorovich on April 4, 2012 3:09 pm in Alien Tort Statute, Federalism, Health Care, Individual Mandate, International Human Rights Law, International Law, Supreme Court
One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard […]
Federalism, Freedom, and the Individual Mandate
Defenders of the individual mandate often argue that the concerns about individual liberty raised by the mandate’s opponent’s are overblown, because most of the latter concede that the Constitution allows state governments to impose similar mandates. A health insurance mandate imposed by a state such as Massachusetts seems no less oppressive than one adopted by […]
President Obama versus the Constitution
By David Kopel on April 2, 2012 11:54 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, Federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, Obama, Presidency, Public Opinion, Supreme Court, Uncategorized, War on Terror
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was […]
The Ethics of Advocacy Blogging
Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of […]
The President vs. the Court
By Jonathan H. Adler on April 2, 2012 9:27 pm in Federalism, Health Care, Individual Mandate, Supreme Court
At a joint press conference today with President Calderon of Mexico, and Prime Minister Harper of Canada, President Obama was asked whether, in light last week’s oral arguments, he was concerned the Supreme Court might strike down the individual mandate or other portions of his health care reform law. According to the White House transcript, […]
Underestimating the Chances of the Anti-Mandate Lawsuits
Co-blogger Jonathan Adler rounds up some of the commentary discussing how many liberal pundits underestimated the chances of the anti-mandate lawsuits. After last week’s oral arguments, it now seems clear that many liberal commentators did grossly miscalculate on this issue. At the same time, it is fair to point out that some conservative and libertarian […]
My Regblog Analysis of the Individual Mandate Oral Argument
By Ilya Somin on March 31, 2012 1:46 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
I recently published an analysis of the individual mandate oral argument for the University of Pennsylvania Regblog site. It goes through all nine justices and assesses their probable views on the mandate based on both their oral argument performance and their previous records on federalism issues: This week’s oral arguments before the Supreme Court shed […]
The Inconsistency Between the Constitutional Arguments for the Mandate and Medicaid in the ACA
By Eugene Kontorovich on March 29, 2012 6:20 pm in Constitutional Law, Economy, Federalism, Health Care, Individual Mandate, Supreme Court
Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA… There is a serious inconsistency between the government’s arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial […]
National Review Symposium on the ACA Oral Arguments
National Review has posted a symposium on this week’s ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here’s an excerpt from my piece: This week’s Supreme Court oral argument did not go well […]