Here are a few follow-up questions to my first post this morning. “Burt Likko” says: Prop. 8 is worded: “…only marriage between a man and a woman is valid or recognized in California.” I have a hard time getting past the plain meaning rule to reach a result that an Iowan or Canadian same-sex marriage […]
Archive | Federalism
Marital Choice-of-Law 101
By William Baude, guest-blogging on December 13, 2011 9:14 am in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So we’ve established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem. You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a […]
Marriage as a Creature of State Law
By William Baude, guest-blogging on December 12, 2011 6:32 pm in Beyond DOMA, Constitutional Law, DOMA, Federalism, Same-Sex Marriage, Uncategorized
A number of commenters have asked about the relationship between law and marriage. Some, for example, have taken issue with the statement in my paper’s abstract that “marriage is primarily a creature of state law.” So I thought it was worth explaining a little but more about the relationship between state law and marriage. Obviously, […]
Federalism Seminar Bleg
This is a query primarily intended for my fellow federalism scholars, though I welcome suggestions from others with relevant expertise: I am currently in the process of revising my seminar on federalism for the Spring 2012 semester. To that end, I am considering adding a week on “Federalism and Economic Crisis.” Can you recommend any […]
The original meaning of the 14th Amendment regarding interracial marriage
By David Kopel on December 5, 2011 5:38 pm in Anti-Semitism, Congress, Constitutional History, Constitutional Law, Federalism, First Amendment, Fourteenth Amendment, History, Racism, Supreme Court
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument […]
The DC Circuit Decision Upholding the Individual Mandate
I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say. Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that […]
The Broccoli Slippery Slope vs. the Epidemic Slippery Slope
By Ilya Somin on October 31, 2011 6:41 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall): The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. […]
Federalism and Property Regulation Revisited
In an insightful recent post at Land Use Prof Blog, Adam MacLeod takes property scholars to task for neglecting issues of constitutional federalism: When prominent, accomplished land use scholars discuss federalism why do they pay so little attention to the United States Constitution? However one views the desirability of any particular attempt by Congress to […]
Can the Education Department Place Conditions on NCLB Waivers?
By Jonathan H. Adler on September 25, 2011 6:54 pm in Education, Federalism, Spending Clause, Uncategorized
This past week, the Department of Education announced it would allow states to obtain waivers under the No Child Left Behind Act, but “would set a “high bar on flexibility.”. (HT: Neal McCluskey) According to the announcement: states can get relief from provisions of the Elementary and Secondary Education Act—or No Child Left Behind (NCLB)—in exchange […]
Congressional hearing on interstate handgun carry reciprocity
By David Kopel on September 14, 2011 10:21 pm in Congress, Federalism, Fourteenth Amendment, Guns, McDonald v. City of Chicago, Right to carry
On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members […]
Federal District Court in Pennsylvania Strikes Down Individual Mandate
By Ilya Somin on September 13, 2011 3:10 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding […]
The IRS Wants to Give Tax Credits for Health Insurance Purchases Beyond Those Provided for in the ACA
By Jonathan H. Adler on September 9, 2011 11:43 am in Administrative Law, Federalism, Health Care, Insurance Exchanges, Regulation
The Internal Revenue Service is beginning to promulgate regulations to implement the tax-related provisions of the Affordable Care Act (aka “ObamaCare”). A proposed rule issued last month provides that eligible taxpayers may receive tax credits for the purchase of qualifying health insurance plans established by states under Section 1311 or by the federal government under […]
Fourth Circuit Dismisses Two Challenges to the Individual Mandate on Jurisdictional Grounds
By Ilya Somin on September 9, 2011 9:10 am in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
On Thursday, the Fourth Circuit Court of Appeals issued two decisions dismissing challenges to the Obama health care plan’s individual mandate on jurisdictional grounds. All three judges on the panel were Democratic appointees, including two chosen by President ObamaNeither ruling reached the merits of the question of whether the individual mandate is constitutional. Virginia v. […]
Who wants to provoke a constitutional crisis over abortion?
Today South Carolina Republican Senator Jim Demint hosted a forum at which five Republican presidential candidates spoke. The transcript is here. Each candidate appeared one at a time, and the format allowed for in-depth questions and answers. Among the questioners was Princeton University’s Robert George. Prof. George asked each candidate if he or she would support […]
Identifying Experts’ Political Affiliations and Funding Sources in the Media
Liberal Pittsburgh political blogger “Davyoe” complains that the Pittsburgh Tribune-Review misleadingly portrayed me as a “politically neutral” expert when they interviewed me about the recent individual mandate decision a few days ago. The type of issue he raises is commonly brought up these days: While his description above seems politically neutral (he’s just described as […]