In all the hoopla over the individual mandate, most people (myself emphatically included) have not devoted enough attention to the other big Obamacare case before the Court: the 26 states’ challenge to to the part of the act requiring the states to massively expand Medicaid coverage (covering every non-elderly with an income up to 138% […]
Archive | Federalism
Nearing the end of the search for the non-existent limiting principles
By David Kopel on March 29, 2012 4:47 am in Commerce Clause, Constitutional Law, Federalism, Fifth Amendment, Growth of Government, Guns, Health Care, Individual Mandate, Necessary and Proper, New Class, Regulation, Supreme Court, Taxes, Uncategorized
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over […]
Texas Wins Clean Air Act Fight with EPA
The U.S. Court of Appeals for the Fifth Circuit sternly rebuked the U.S. Environmental Protection Agency for overstepping its statutory authority in rejecting three air pollution control regulations adopted by the state of Texas for their alleged non-conformity with applicable Clean Air Act requirements. In Luminant Generation Company, LLC v. EPA, the Fifth Circuit the […]
Crediting/Blaming the VC for the Possible Defeat of the Individual Mandate
By Ilya Somin on March 28, 2012 6:03 pm in Federalism, Health Care, Individual Mandate, Public Opinion
Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.: Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At […]
Thoughts on the Individual Mandate Oral Argument
By Ilya Somin on March 27, 2012 7:15 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other […]
Justices Skeptical of Claims that the Individual Mandate is a Tax
By Ilya Somin on March 26, 2012 1:16 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is […]
My CNN Column on the Individual Mandate Case
By Ilya Somin on March 26, 2012 9:44 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt: This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is […]
My New York Times Room for Debate Forum Piece on the Individual Mandate Case
The New York Times Room for Debate Forum has recently posted a set of short op eds by experts on both sides of the upcoming health care cases. My own contribution to the Forum is here. Here’s an excerpt: The individual health insurance mandate case raises momentous issues about the limits of federal power. As […]
Shortcomings of the “Everyone Uses Health Care” Rationale for the Individual Mandate
The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case. The most popular one, […]
Public Opinion, Sympathetic Plaintiffs, and the Individual Mandate Case
By Ilya Somin on March 23, 2012 8:44 pm in Federalism, Health Care, Individual Mandate, Public Opinion
In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion: Some say that the challengers to the individual mandate can win even if they […]
Audio of My Recent NPR Individual Mandate Discussion with Professor Vikram Amar
Earlier today, UC Davis lawprof Vikram Amar and I were on a KQED NPR radio program discussing the individual mandate litigation. Amar believes that the Court should uphold the mandate whereas I, of course, do not. The audio is available here: One thing I notice about these radio exchanges is that there is a tremendous […]
The Individual Mandate Case is Not Easy
Linda Greenhouse and Dahlia Lithwick have attempted to resuscitate the claim that the individual mandate is so obviously constitutional that only ignorance or political bias can lead anyone to believe otherwise. Such claims were perhaps understandable back when this litigation began. But even then, there was no expert consensus on the constitutionality of the mandate. […]
Jonah Goldberg on Heather Gerken’s Progressive Case for Federalism
Like me, conservative National Review columnist Jonah Goldberg has a generally favorable take on Yale Law Professor Heather Gerken’s progressive case for federalism: A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically….. Pushing government decisions down to the […]
The Politics of Mandates
In a recent post, co-blogger Orin Kerr suggests that polls showing the unpopularity of the individual health insurance mandate prove that slippery slope concerns about upholding the mandate case may be unfounded, because “mandates are just political losers.” Some mandates are indeed political losers. But as I explain in the forthcoming article that Orin kindly […]
Public Opinion, the Individual Mandate, and the Supreme Court
By Ilya Somin on March 19, 2012 6:10 pm in Federalism, Health Care, Individual Mandate, Public Opinion
A recent Washington Post/ABC poll shows that 68% of the public want the Supreme Court to strike down the individual health insurance mandate. That includes 42% who want the Court to invalidate the entire Affordable Care Act and 26% who want it to strike down the mandate alone. If forced to choose, 52% of those […]