This week and next, SCOTUSblog is hosting an online symposium on various aspects of the litigation challenging California’s Proposition 8 and the Defense of Marriage Act. The expected contributors are well-known combatants in the ongoing national debate over gay marriage: Carlos Ball, Bob Barr, Thomas Berg, Erwin Chemerinsky, David Cruz, William C. Duncan, John Eastman, William Eskridge, […]
Archive | Federalism
My RegBlog Post on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 18, 2011 2:35 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject. RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be […]
My Newsday Op Ed on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 17, 2011 2:29 pm in Commerce Clause, Federalism, Necessary and Proper, Taxing and Spending Clause
Newsday has published an op ed I wrote on the 11th Circuit decision striking down the individual mandate. Because of very tight space constraints, I was unable to cover many of the nuances of the decision. But the op ed does summarize my main thoughts on it: Last week’s Eleventh Circuit Court of Appeals decision […]
More Individual Mandate Commentary Coming Soon
I recognize that I have been somewhat derelict in failing to post additional commentary on the Eleventh Circuit’s important decision striking down the individual mandate. Unfortunately, I was away at a friend’s wedding this weekend, and testifying before the US Commission on Civil Rights on Friday. Plus, it took some time to read the court’s […]
Distinguishing Wickard
By Jonathan H. Adler on August 14, 2011 12:59 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Another interesting portion of the Eleventh Circuit’s decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court’s opinion notes, the Supreme Court (in Lopez) characterized Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” As a consequence, the Eleventh Circuit concluded, Wickard “provides […]
The Mandate and the “Mainstream”
By Jonathan H. Adler on August 12, 2011 2:34 pm in Academia, Federalism, Health Care, Individual Mandate
Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps […]
11th Circuit Strikes Down Individual Mandate
The 11th Circuit Court of Appeals has just issued a 2-1 ruling striking down the individual mandate in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit […]
BREAKING – Eleventh Circuit Declares Individual Mandate Unconstitutional
The Reuters story is here. Opinion should be available soon on the Eleventh Circuit’s website. UPDATE: The very lengthy opinion is here. The court split 2-1. Judges Hull and Dubina jointly issued the opinion of the court. Judge Marcus dissented. The court concludes the mandate cannot be justified under either the taxing power or commerce […]
Federalism and Property Rights
By Ilya Somin on August 10, 2011 9:26 pm in Blight, Eminent Domain, Federalism, Kelo, Property Rights
My recently published article “Federalism and Property Rights” is now available on SSRN. It’s part of the University of Chicago Legal Forum Symposium on Governance and Power. Here is the abstract: Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property […]
What Does the Mandate Regulate?
Today SCOTUSBlog has posted my contribution to its symposium on “The Constitutionality of the Affordable Care Act.” It begins: The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to “regulate commerce . . . among the several states.” This is no […]
My SCOTUSblog Post on the Future of the Individual Mandate Litigation
By Ilya Somin on August 10, 2011 4:15 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in […]
What Collective Action Federalism Is and Is Not
By Neil Siegel, guest-blogging on August 9, 2011 9:54 am in Collective Action Problems, Commerce Clause, Federalism
I congratulate Ilya Somin on the arrival of Willow. My daughters stand ready to babysit your beautiful pooch. In this post, I will clarify the theory of collective action federalism by offering four points about what the theory is and is not. First, collective action federalism is not a comprehensive structural account of American constitutional […]
The Theory of Collective Action Federalism
By Neil Siegel, guest-blogging on August 8, 2011 9:58 am in Collective Action Problems, Commerce Clause, Federalism
I thank Eugene Volokh for inviting me to blog about my work in this highly regarded venue. Today, I will present the theory of collective action federalism, which I have developed with Robert Cooter of Berkeley Law in a recent article. Tomorrow, I will clarify what the theory is and is not. Later in the […]
Collective Action Federalism
Like Eugene Volokh, I too look forward to the upcoming guest-blogging stints by Kurt Lash and Neil Siegel. It so happens that I recently reviewed Robert Cooter and Neigl Siegel’s outstanding article “Collective Action Federalism” on Jotwell, a website where legal scholars review important new scholarship. Here’s an excerpt from what I said: Robert Cooter […]
Kurt Lash and Neil Siegel, Guest-Blogging
I’m delighted to report that Prof. Kurt Lash (Illinois) and Prof. Neil Siegel (Duke) will be guest-blogging this week on the Constitution and federal power. This isn’t quite a debate, since their arguments differ somewhat in scope; but I thought their perspectives would still provide helpful counterpoints to each other, and would be interesting on […]