Ilya Shapiro of the Cato Institute (no relation, though sometimes confused with me) reports that the Akaka Bill is not going to be pushed through Congress during the present lame-duck session. I criticized an earlier version of the bill on federalism grounds here. As my fellow Ilya points out, this probably won’t be the last […]
Archive | Federalism
The 150th Anniversary of South Carolina’s Secession
At Ricochet, Hillsdale College Professor Paul Rahe has a post on the 150th anniversary of South Carolina’s vote to secede from the Union. I’m one of the few Americans sympathetic to the general idea of secession who is also unequivocally hostile to the secession effort undertaken by the Confederacy in 1860-61. In my view, the […]
Linda Greenhouse on the Individual Mandate Litigation and the “End” of the “Federalism Revolution”
By Ilya Somin on December 17, 2010 4:36 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with […]
Is Judge Hudson’s Opinion “Irresistible”?
In today’s NYT, Brooklyn Law’s Jason Mazzone explains why Judge Hudson’s analysis in Virginia v. Sebelius may prove “irresistible” to the Supreme Court. When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must […]
From Judge Hudson’s Pen to Justice Scalia’s Ear
Many critics of Judge Hudson’s opinion in Virginia v. Sebelius have shorted his discussion of the Necessary and Proper Clause. (Even some of us who support the opinion have accepted this critique.) But Brooklyn Law’s Jason Mazzone suggests Judge Hudson’s critics are misreading his opinion, which was written more for Justice Scalia than legal academics. […]
A Brief Reply to Orin on the Necessary and Proper Clause
In my post below I wrote that “none of the relevant cases stand for the proposition that it is for Congress, and Congress alone, to determine what may be enacted as necessary and proper to the execution of other constitutional measures.” Orin suggests that a passage from United States v. Comstock, quoting Burroughs v. Untied […]
Thoughts on Today’s Ruling Striking Down the Individual Health Insurance Mandate
By Ilya Somin on December 13, 2010 11:47 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Here are a few thoughts on today’s federal district court ruling striking down the constitutionality of the Obamacare individual mandate. In my view, the strongest parts of Judge Henry Hudson’s opinion are those where he rejects the federal government’s arguments under the Commerce Clause and the Tax Clause. On the Commerce Clause, federal government lawyers […]
New York Times Room for Debate Blog Forum on Today’s Individual Mandate Decision
By Ilya Somin on December 13, 2010 9:50 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Sports and Games, Taxes, Taxing and Spending Clause
The New York Times Room for Debate blog has posted a forum where various scholars weigh in on today’s district court decision striking down the individual mandate. It includes contributions by co-blogger Randy Barnett and myself. My piece briefly discusses the Commerce Clause and Tax Clause aspects of the ruling: Judge Henry Hudson’s decision today […]
Further Thoughts on the Virginia Health Care Ruling and the Necessary and Proper Clause
In his post below, Orin criticizes Judge Hudson’s opinion for implying that if Congress may not regulate inactivity under the Commerce Clause it also may not reach such conduct under the Necessary and Proper Clause. This cannot be right because, as Orin notes, the whole point of the clause is to give Congress the ability […]
Initial Thoughts on the Virginia Health Care Ruling
The federal district court’s decision declaring portions of federal health care reform unconstitutional reaffirms that the federal government has limited and enumerated powers. The theories advanced by the federal government in support of the mandate were without bounds and could have justified virtually unlimited federal control of private activity. Reforming America’s health care system is […]
Reflections on the Repeal Amendment
Co-blogger Randy Barnett’s proposed Repeal Amendment has generated a great deal of controversy. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation. The idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor. Randy argues that […]
Limits, “Significant” Limits, and the Commerce Clause
By Ilya Somin on December 3, 2010 2:48 am in Commerce Clause, Federalism, Health Care, Individual Mandate
In his most recent post in our exchange about the individual mandate and the Commerce Clause, Orin distinguishes between a conception under which Congress’ commerce power is “not unlimited” and one where it is “significantly limited.” He argues that the Court’s jurisprudence endorses the former, but not the latter. In my view, however, concluding that […]
Assumptions and “Activities” in Commerce Clause Jurisprudence
By Ilya Somin on December 2, 2010 11:29 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
In his response to my post on why going without health insurance doesn’t qualify as an “activity” that Congress can regulate under the Commerce Clause, Orin Kerr claims that my reasoning “begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of ‘activity’ in order […]
District Court Upholds Individual Mandate Against Challenge Filed by Liberty University
By Ilya Somin on December 1, 2010 10:45 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Spending Clause, Taxes, Taxing and Spending Clause
Yesterday, federal district Judge Norman Moon of the Western District of Virginia upheld the Obamacare individual mandate against a constitutional challenged filed by Liberty University and several private plaintiffs. For the most part, Judge Moon’s reasoning closely follows that of Michigan district Judge George Caram Steeh in the recent Thomas More Law Center decision. Both […]
Upcoming Speech at Duke Law School on the Individual Mandate Litigation
By Ilya Somin on November 14, 2010 3:40 pm in Federalism, Federalist Society, Health Care, Individual Mandate
This Monday at noon, I will be giving a talk at Duke Law School on the Obamacare individual mandate litigation, which I recently wrote about here. The speech is sponsored by the Duke Federalist Society.