(Update: Thanks to Ilya for his post above, and Orin for his comment below to this post. Bottom line is that Comstock does not have national security implications.) Could I put a question to the VC staff who are following Comstock? For those of us in the national security area, the whole matter of continued […]
Archive | Federalism
Assessing the Comstock Oral Argument
Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” […]
Oral Argument in United States v. Comstock
This morning I went to the oral argument at the Supreme Court for United States v. Comstock, a potentially important federalism case that we’ve blogged about here before. The issue in the case is whether Congress has the Article I power to set up a system of civil commitment for sex offenders after their federal […]
Does Congress Have the Authority to Enact a Health Insurance Mandate Using its Power to Tax?
Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. – Jack Balkin), which gives Congress the power to To lay and collect […]
Are there Areas of Consensus Among Constitutional Law Scholars?
Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that […]
The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate
In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal […]
Will States Challenge the “Nebraska Compromise”?
The AP reports several state attorneys general are looking into potential legal challenges to the health care bill (assuming it passes). The top prosecutors in seven states are probing the constitutionality of a political deal that cut a funding break for Nebraska in order to pass a federal health care reform bill, South Carolina’s attorney […]
Dangers of the Overexpansion of Federal “Regulatory Crimes”
Marie Gryphon of the Manhattan Institute, a generally conservative think tank with strong libertarian leanings, has an excellent report summarizing several dangers of the overexpansion of federal criminal law in the field of “regulatory crimes.” Here is the executive summary: Since the dawn of Anglo-Saxon common law, conviction for committing a crime required evidence of […]
Federations in Science Fiction
I am alternately amused and saddened that one of the most widely read articles about federalism is my tongue in cheek 2007 National Review piece on federalism in Star Trek’s United Federation of Planets, based on an earlier VC post. Many more people seem to be interested in the fine points of federalism in fictional […]
Could an Individual Mandate Violate Article I, Section 9?
Most discussions about the constitutionality of an individual mandate in health care reform proposals have focused on whether such a mandate could be justified under the federal government’s enumerated powers in Article I, section 8. (See, e.g., these VC posts.) Some (including me) have opined that, under existing case law, an individual mandate would probably […]
Liveblogging the Federalist Society National Lawyers Convention
My former student and current federal district court law clerk Josh Blackman has managed to get himself appointed to the exalted newly created position of official liveblogger of the Federalist Society National Lawyers Convention, which is taking place this Thursday through Sunday. Interested VC readers who can’t come in person may want to check out […]
Federalist Society National Lawyers Convention This Week
Interested readers may want to check out the Federalist Society National Lawyers Convention, which will be held in Washington DC this week, Thursday to Saturday. At least two Conspirators will be speaking on various panels (Randy Barnett and yours truly). The full schedule is available here. There is still time to register. It’s only fitting […]
Health Care and Federalism
Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other […]
How Much of a Difference will the Administration’s New Policy on Prosecuting Medical Marijuana Cases Make?
Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 […]
A Step Toward Sanity on Medical Marijuana
The AP reports that the Justice Department will issue a memo formally establishing a new policy regarding the federal prosecution of marijuana possession and sale in states that have decriminalized medical marijuana. The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new […]