This Thursday at 12:30 PM, I will be speaking at Notre Dame Law School on the constitutionality of the new health care law, especially focusing on the provision mandating that individuals purchase health insurance even if they prefer not to. I was invited by the Notre Dame Federalist society. The event will be held in […]
Archive | Federalism
Public radio program on the modern states’ rights movement
By David Kopel on April 8, 2010 12:22 am in Constitutional History, Constitutional Theory, Federalism
Today KUER, Salt Lake City, devoted an hour to discussion of the current surge of interest in states’ rights. The four participants each appear in a different quarter of the program. The guests were Utah State Representative Ken Sumsion, me, Chip Ward (who claims that the state’s rights advocates are not sincere) and Alison LaCroix of the University […]
Destroying the Constitution’s Structure is not Constitutional
By David Kopel on April 2, 2010 3:38 am in Constitutional History, Constitutional Theory, Federalism, Fourteenth Amendment, Health Care, Militia, Taxes
Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which […]
The Myth of an Expert Consensus on the Constitutionality of the Health Care Mandate Revisited
Back in December, I wrote a post debunking “The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate.” Despite claims by some Democratic politicians and activists, there are numerous prominent constitutional law scholars who believe that the mandate is unconstitutional. I noted several of them in my post, including Richard […]
European Libertarians and Federalism
In his post on American libertarians’ support for federalism, which I responded to here, NYU lawprof Rick Hills points out that American libertarian support for federalism may be at odds with the position taken by our European cousins. “European libertarians, to my knowledge,” he writes, “have never liked federalism much.” The divergence between American and […]
A Message from/to Rick Hills
By Randy Barnett on March 28, 2010 7:18 pm in Commerce Clause, Constitutional Theory, Federalism, Fourteenth Amendment
I thought Volokh readers might enjoy an email exchange I had earlier today with NYU lawprof Roderick Hills earlier: Hi Randy — I thought I’d send along a recent blog post at Prawsblog that gives you, Cato, Ilya, etc some flak in a good-natured way. (Brian Galle also has a post on health care federalism […]
Why do Libertarians Like Federalism?
NYU lawprof Roderick Hills, a leading academic expert on federalism, asks why libertarians “care about federalism.” He posits three possible reasons: I have three theories to explain the connection that libertarians draw between federalism and libertarianism, which I’ll label the (a) “feet-voting” theory; (b) “shrink-and-drown” theory; and (c) “insincerity” theory. Hills captures the major libertarian […]
“Federalist Society Types” Were Committed to Judicial Enforcement of Federalism Long Before Obamacare
By Ilya Somin on March 25, 2010 10:46 pm in Commerce Clause, Federalism, Federalist Society, Health Care, Taxing and Spending Clause
University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most […]
Lawsuits Against the Health Care Bill
The Publius blog a helpful post linking information on the various lawsuits recently filed against the Obama health care bill. In addition to the suit filed by 13 states and a separate suit by the state of Virginia, there is a little-noticed lawsuit challenging the individual mandate brought by the conservative Thomas More Law Center […]
Is the tax power infinite?
By David Kopel on March 22, 2010 8:05 pm in Commerce Clause, Congress, Constitutional History, Economic LIberties, Federalism, Guns, Health Care, Necessary and Proper, Politics, Supreme Court, Taxes
One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. Jack […]
As Predicted, New Justice Department Policy Didn’t Stop Federal Medical Marijuana Arrests in States Where Medical Marijuana is Legal Under State Law
Back in October, the Obama Administration Justice Department issued a memorandum that seemed to constrain federal enforcement of laws against marijuana possession in states where medical marijuana is permitted under state law. I welcomed the memo as a small sign of progress, but pointed out that it doesn’t really constrain federal prosecutions in any meaningful […]
Gail Heriot and Peter Kirsanow on the Akaka Bill
In today’s Wall Street Journal, Gail Heriot and Peter Kirsanow of the US Commission on Civil Rights have an interesting op ed criticizing the Akaka Bill, which I myself criticized on federalism grounds in this post: Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly […]
Federalism and the Akaka Bill
The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive […]
Why the Issue of Secession Isn’t “Settled”
In a recent post, co-conspirator Eugene Volokh argues that the Civil War did not settle the issue of the constitutionality and moral defensibility of secession. I made a detailed argument to the same effect in this 2008 post. I’m not going to restate all my analysis here. But I will say that I don’t think […]
Comstock and National Security Detentions
By Ilya Somin on January 12, 2010 11:41 pm in Commerce Clause, Federalism, Necessary and Proper, War and Armed Conflict, War on Terror
Co-blogger Ken Anderson asks: Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? […]