The Hill has a story claiming that the federal government has changed its defense of the individual mandate to emphasize the Necessary and Proper Clause more: The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court. Written briefs in the landmark case increasingly have […]
Archive | Federalism
C-SPAN Video of my WLF Debate on the Individual Mandate Litigation with Andrew Pincus
For readers who may be interested, C-SPAN has posted the video of my recent debate on the individual mandate litigation with Andrew Pincus of Mayer Brown, a well-known appellate litigator who has argued many Supreme Court cases. The event took place at the Washington Legal Foundation, on whose behalf I wrote an amicus brief in […]
Federalism and Tort Reform Revisited
Andrew Cochran of the 7th Amendment Advocate (who is also a representative of the organized trial bar), reports that the House is likely to vote on a Republican bill restricting state medical malpractice lawsuits next week. He cites several conservative and libertarian legal commentators who oppose federal tort reform on constitutional grounds, including myself and […]
Heather Gerken’s Progressive Defense of Federalism
By Ilya Somin on March 13, 2012 9:11 pm in Federalism, Gay Rights, Racial Discrimination, Racism, Voting With Your Feet
Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism: Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably […]
Debating the Moral and Legal Status of Secession
Jason Kuznicki and Timothy Sandefur have written responses to my post critiquing Kuznicki’s earlier statement that the idea of legal secession is a “category error.” Kuznicki writes: Of course, it’s indisputably true that some secessions are authorized by some countries’ constitutions. Others, however, are not. Within these two types of cases, authorized and unauthorized, we […]
Is Legal Secession a “Category Error”?
As part of the ongoing discussion of libertarian views on the Civil War and secession, Jason Kuznicki of Cato and David Drumm of the Jonathan Turley blog have argued, in Kuznicki’s words, that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it […]
Washington Legal Foundation Debate on the Individual Mandate Litigation
Next Tuesday, March 13, from 9:30 to 10:30, I will be taking part in a debate on the individual mandate litigation at the Washington Legal Foundation. Joining me will be Andrew Pincus of Mayer Brown, counsel for a group of constitutional law professors who filed an amicus brief supporting the constitutionality of the mandate. I […]
Reassessing Our Federal and State Constitutions
By Ilya Somin on March 8, 2012 11:27 pm in Constitutional Amendments, Constitutional Law, Constitutional Theory, Federalism, Voting With Your Feet
In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions: [I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact […]
Libertarianism and the Civil War
By Ilya Somin on March 6, 2012 12:55 am in Civil War, Federalism, History, Libertarianism, Racism, Secession
Over at Libertarianism.Org, Jonathan Blanks has an interesting series of posts criticizing libertarians who defend the secession of the Southern states that precipitated the civil war (see here and here). Like Blanks, I believe that any possible justification that the Confederates may have had was negated by the fact that they seceded for the purpose […]
“The Uneasy Case for the Affordable Care Act”
Duke law professor Stephen Sachs has a new essay. “The Uneasy Case for the Affordable Care Act,” responding to Erwin Chemerinsky on the constitutionality of the individual mandate. Here is the abstract from SSRN: The constitutionality of the Affordable Care Act is sometimes said to be an “easy” question, with the Act’s opponents relying more […]
UCLA Law School Debate on the Individual Mandate Litigation
By Ilya Somin on February 28, 2012 2:42 pm in Federalism, Federalist Society, Health Care, Individual Mandate
This Thursday at 12:15 PM, I will be debating the individual mandate case at UCLA Law School with UCLA professor Jonathan Varat. The event is sponsored by the UCLA chapter of the Federalist Society.
Marijuana Federalism
An initiative to legalize possession of 1 ounce or less of marijuana qualified for the November ballot in Colorado yesterday. The initiative only legalizes possession for those 21 or older, and would also make it legal to grow up to six marijuana plants in one’s home and decriminalize the licensed sale of marijuana, subject […]
Los Angeles Federalist Society/Stanford Law School/Libertarian Law Council Event on the Individual Mandate
This Thursday, March 1 at 6 PM, I will be speaking at an event on the individual mandate litigation with Stanford Law School Dean Larry Kramer. The event is sponsored by the Los Angeles lawyers’ division chapter of the Federalist Society, Stanford Law School, and the Libertarian Law Council. Location and registration information is available […]
Foot Voting, Political Ignorance, and Constitutional Design
By Ilya Somin on February 17, 2012 10:50 am in Federalism, Political Ignorance, Voting With Your Feet
My 2011 article “Foot Voting, Political Ignorance, and Constitutional Design” is now available on SSRN, after a delay due to policies of the publisher. Here’s the abstract: The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely […]
Briefs by VC Authors in the Individual Mandate Case
By Ilya Somin on February 15, 2012 10:45 am in Federalism, Health Care, Individual Mandate, Necessary and Proper
Regular VC readers might be interested in knowing just how many briefs in the individual mandate case have been authored by your humble Conspirators. In this post, I try to summarize all of them. Not surprisingly, they all urge the Court to strike down the mandate. Pride of place goes to Randy Barnett’s coauthorship of […]