This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to […]
Archive | Federalism
Debating Repeal of the 17th Amendment
The Federalist Society has published an exchange between co-blogger Todd Zywicki and myself on the question of whether the 17th Amendment should be repealed. Todd argues that repeal would help reestablish necessary limits on federal power. I contend that it would have little effect, and especially would not lead to a net reduction in federal […]
Foot Voting for Freedom
Political scientist Jason Sorens presents some interesting new data showing that people tend to “vote with their feet” for states with greater freedom when they make migration decisions. He shows that, controlling for other variables (such as climate and cost of living), people tend to migrate towards states with greater economic and personal freedom, and […]
California Dreamin’ of Secession
Riverside County Supervisor Jeff Stone recently called for southern California to secede and form a new state: Is the state of California about to go “South”? Riverside County Supervisor Jeff Stone apparently thinks so, after proposing that the county lead a campaign for as many as 13 Southern California counties to secede from the state. […]
My Jurist Op Ed on the Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on July 1, 2011 3:58 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
The Jurist has just published an op ed I wrote criticizing the recent Sixth Circuit decision upholding the individual mandate: This week, the US Court of Appeals for the Sixth Circuit ruled that the individual mandate of federal health care reform is constitutional. This is undeniably a setback for mandate opponents…. Before this decision, judges […]
Barney Frank and Ron Paul Introduce Bill that Would Legalize Marijuana Under Federal Law
Democratic Representative Barney Frank and Republican Ron Paul recently introduced a bill that would repeal the federal law banning marijuana: The legislation would eliminate marijuana-specific penalties under federal law, but would maintain a ban on transporting marijuana across state lines. It would allow individuals to grow and sell marijuana in states that make it legal. […]
Republican presidential candidates pledge to appoint judges to overturn the unconstitutional anti-abortion law they will sign
By David Kopel on June 18, 2011 4:42 pm in Abortion, Constitutional History, Constitutional Law, Federalism, Fourteenth Amendment, Health Care, Individual Mandate, Judicial Nominations, Originalism, Supreme Court
At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.” Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are: FIRST, […]
“Fidelity to principles of federalism is not for the States alone to vindicate”
Today the U.S. Supreme Court handed down a unanimous opinion in Bond v. United States, holding that an individual indicted for violating a federal law has standing to raise federalism-based challenges to the relevant statute. The outcome of this case was not much in doubt, as the federal government had conceded that the judgment of […]
Federal Female Genital Mutilation Ban
Here’s the text of the federal female genital mutilation ban, together with the factual findings: (a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall […]
Indiana and HHS to Fight Over Planned Parenthood Funding
Indiana lawmakers recently enacted legislation barring Planned Parenthood from receiving money under the state’s Medicaid program. Earlier today, the Department of Health and Human Services informed Indiana that this restriction is illegal, and could jeopardize the state’s participation in Medicaid. Indiana does not appear ready to back down, however. The AP reports: In a letter […]
Administration Abandons Tax Injunction Act Defense of Individual Mandate
In a brief filed today with the U.S. Court of Appeals for the Fourth Circuit, the Department of Justice explained it was no longer urging federal courts to dismiss challenges to health care reform’s individual mandate on the grounds that such suits are precluded by the Anti-Injunction Act. SCOTUSBlog’s Lyle Denniston explains: The Anti-Injunction Act, […]
Olson on Federalism and Med-Mal Reform
Over on Cato@Liberty, Walter Olson joins the discussion on federalism and medical malpractice reform started by our own Randy Barnett and continued by Ilya Somin. Olson makes the important point that federalism is not about keeping as much authority as possible in state hands, nor does a commitment to federalism require leaving state courts alone […]
Federalism and Tort Reform
The Hill has an interesting article about co-blogger Randy Barnett’s constitutional critique of GOP efforts to impose federally mandated tort reform on the states [HT: Instapundit]: Opponents of a House medical malpractice bill are trumpeting an attack on the legislation from a prominent conservative lawyer. Georgetown University law professor Randy Barnett accused the GOP of […]
Hard Cases Make Bad Law – Activity/Inactivity Edition
I appreciate Orin’s thoughtful post below, responding to my post form last night on the activity/inactivity distinction. I think it helps make my point that the basic distinction between activity and inactivity is readily understandable. What Orin points out, however, is that the precise contours of this distinction are a bit fuzzy and may be […]
Baffled that Anyone Is Baffled by the Activity/Inactivity Distinction
The Fourth Circuit panel may have been baffled by the activity/inactivity distinction, as Orin reports, but it’s really not a new idea. The distinction between activity and inactivity is not an alien concept to the law. We see this distinction where the law recognizes the difference between acts of commission and acts of omission, for […]