Among the many amicus briefs filed in Supreme Court on the individual mandate case in recent days is this one urging the Court to strike down the mandate, on behalf of a group of supporters of single payer health care. A few weeks ago, I wrote a post criticizing claims (usually made by left-liberal defenders […]
Archive | Federalism
Our Supreme Court Amicus Brief Explaining Why the Individual Mandate is not “Proper”
By Ilya Somin on February 13, 2012 5:19 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
We have just filed an amicus brief in the individual mandate case that I wrote on behalf of the Washington Legal Foundation and a group of prominent constitutional law scholars. The brief is available here. The legal scholar amici include Steve Calabresi, James Ely, Steve Presser, and Volokh Conspiracy bloggers Jonathan Adler and Todd Zywicki, […]
Debating the Individual Mandate
Last week, I was a participant in the 2012 Fordham Debate at the University of Utah’s S.J. Quinney College of Law. The topic was the constitutionality of the minimum coverage requirement (aka the individual mandate) of the Patient Protection and Affordable Care Act, and my interlocutor was David Orentlicher of Indiana University. For those interested, […]
The Dangerous Growth of State Dependence on Federal Funds
Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments’ growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008. One of the main distinctive benefits […]
Federalism and Freedom
The editors of the Liberty Fund’s new Law and Liberty website recently asked me to write a short article on federalism and freedom commenting on the Supreme Court’s decision in Bond v. United States, where a unanimous Court emphasized that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. […]
Santorum, Federalism, and States’ “Right to Do Wrong”
As co-blogger Jonathan Adler notes, Rick Santorum’s view of constitutional federalism is that the federal government can always override the states when the latter are doing something that is “wrong”: I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from […]
Newt Gingrich on Marijuana and the Founding Fathers
Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on […]
Santorum: “States Do Not Have the Right to Do Wrong”
The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions. I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from […]
Larry Ribstein, RIP
I am sorry to be the bearer of bad tidings during the holiday season. Unfortunately, however, I recently learned that University of Illinois law professor Larry Ribstein passed away suddenly earlier today. Larry was a well-known and highly regarded legal scholar – one of the best of his generation. He wrote extensively on corporate law, […]
Interstitial Law
Before I go, I wanted to leave you with a few thoughts about these legal issues that go beyond the issue of DOMA and same-sex marriage. As you may have gleaned, it turns out that marriage isn’t the only area where federal law draws upon or relies upon a pre-existing concept under state law. As […]
Congress
By William Baude, guest-blogging on December 16, 2011 11:19 pm in Beyond DOMA, DOMA, Federalism, Proposed Legislation, Same-Sex Marriage
Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress. First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing […]
A Common-Law Solution
By William Baude, guest-blogging on December 16, 2011 6:05 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state’s marriage law is relevant to a federal statute. You might […]
What Happens to Straight People
By William Baude, guest-blogging on December 16, 2011 3:01 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D’s comment this morning is representative: “how are opposite-sex married couples treated in conflict-of-laws situations? We’ll take that, then.” The important thing to recognize is that there […]
What’s Wrong with Klaxon
By William Baude, guest-blogging on December 16, 2011 2:03 am in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So earlier this morning (yesterday, Eastern Time, which apparently governs the Volokh Conspiracy), I explained why the federal government does indeed need to look in large part to state law when it tries to figure out whether a couple is married. In this post we’ll discuss another alternative solution with a goofy case name: “Klaxon.” […]
What about Full Faith and Credit?
By William Baude, guest-blogging on December 14, 2011 8:53 pm in Beyond DOMA, Constitutional Law, DOMA, Federalism, Same-Sex Marriage
Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn’t the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away. The […]