In previous posts, I have argued that the Constitution does not give the federal government the power to make binding treaties on issues that are otherwise outside the scope of federal power (see here, here, and here). In his latest contribution to our debate, guest blogger Rick Pildes argues that this position would make it […]
Archive | Federalism
Except the Bill of Rights: The Selective-Strong Treaty Position
By Eugene Kontorovich on January 21, 2013 9:19 pm in Constitutional Law, Constitutional Theory, Federalism, Global Governance/World Government, Treaties
Generally, the entire Constitution is seen as having equal weight; there are not tiers of authority (unlike in the constitution’s of many other nations, which make certain provisions suspendable). Thus I have always been puzzled by the dominant view, well-articulated by Prof. Pildes, which manages to account for Missouri v. Holland and Reid v. Covert […]
Reasons to Worry About Overreaching on the Treaty Power
In his most recent thoughtful post on the treaty power, guest blogger Rick Pildes describes my position as follows: Ilya… is concerned with Congress enter[ing] into a treaty pretextually – not for genuine reasons of foreign policy, international relations, and the like – but for the purpose of gaining legislative powers that would otherwise be […]
The Legal Status of Treaties that Require Violations of the Constitution
Co-blogger Nick Rosenkranz and I agree on most of the practically important issues regarding the constitutional status of treaties. But in his insightful recent post responding to my most recent comment on the subject, Nick does identify one theoretically interesting difference between us. He believes that treaties that require action that violates the Constitution are […]
Bond v. United States and the Treaty Power
As guest blogger Rick Pildes notes, the Supreme Court on Friday agreed to hear Bond v. United States, an important case addressing the issue of whether international treaties can authorize Congress to legislate on issues that would otherwise be under the exclusive control of state governments. This is one of the very rare cases that […]
Turning Federalism Right-Side Up – My Review of Michael Greve’s The Upside-Down Constitution
By Ilya Somin on December 11, 2012 10:45 am in Commerce Clause, Constitutional Law, Constitutional Theory, Federalism, Necessary and Proper, Taxing and Spending Clause
My review of Michael Greve’s important new book, The Upside-Down Constitution is about to be published in Constitutional Commentary, and is now available on SSRN. Here is the abstract: Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the […]
Georgia Fact-Check Fail
The election may be over, but the work of “fact-checkers” continues. Last week, Politifact-Georgia waded into the debate over whether states should create health insurance exchanges with a fact check of my occasional co-author Michael Cannon of the Cato Institute. Specifically, Politifact evaluated the claim, made in this article, that: operating an Obamacare exchange would […]
Public Opinion on Secession
A recent Huffington Post poll shows that some 22% would “strongly support” (12%) or “tend to support” (10%) their state’s secession from the union (complete results here). This result, combined with recent petitions for secession sent to the White House by citizens of Texas and other states, has led to considerable alarmist discussion of the […]
The Opposite of Secession
While secession by U.S. states is often seen as the domain of kooks, America also has an accession movement – and a parallel succession movement that seems to have relatively significant support in its locality and is certainly not treated as kooky. One of the more significant, but less discussed questions in the last election […]
The GOP’s Pot Problem
Support for the decriminalization of marijuana, whether for medicinal or recreational use, is on the rise as state after state votes to lower (if not eliminate) restrictions on cannabis possession and use. The federal government’s response, particularly under the Obama Administration, has been to step up enforcement efforts. And what is the GOP response? Falling […]
Michael Greve on the Proper Meaning of “Proper” in the Necessary and Proper Clause
By Ilya Somin on November 5, 2012 8:00 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
At the Law and Liberty Blog, my George Mason colleague Michael Greve has posted an insightful commentary on my forthcoming article analyzing the proper meaning of “proper.” Michael agrees with my conclusion that the individual health insurance mandate was improper, but takes issue with some of my reasoning: My colleague Ilya Somin has penned a […]
My Forthcoming Article on the Individual Mandate and the Meaning of “Proper” in the Necessary and Proper Clause
By Ilya Somin on October 29, 2012 1:40 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
My forthcoming book chapter, “The Individual Mandate and the Proper Meaning of ‘Proper,’” is now available on SSRN. It is forthcoming in The Health Care Cases, edited by Gillian Metzger, Trevor Morrison, and Nathaniel Persily, eds. (Oxford University Press). The book is a collection of essays on NFIB v. Sebelius, the case where the Court […]
Fair Weather Federalism in the Forecast
David Rivkin and Elizabeth Price Foley stress the importance of federalism in the WSJ, and lament its lack of support among politicians. Despite federalism’s many virtues, it is not much in vogue. Democrats view it as a quaint, 18th-century relic, another disposable constitutional concept that stands in the way of “progress.” The Obama administration has […]
Foot Voting, Federalism, and Political Freedom
By Ilya Somin on October 15, 2012 11:30 am in Democracy, Federalism, Political Ignorance, Voting With Your Feet
My forthcoming article, “Foot Voting, Federalism, and Political Freedom,” is now available on SSRN. The article is part of a symposium on Federalism and Subsidiarity in the interdisciplinary journal Nomos, which focuses on a different broad issue in political theory every year. Other contributors include a variety of big-name federalism scholars in legal academia and […]
Ninth Circuit Treats Supreme Court Individual Mandate Necessary and Proper Clause Ruling as a Binding Precedent
Co-blogger Jonathan Adler recently posted on United States v. Elk Shoulder, a recent Ninth Circuit decision which may be the first court of appeals case interepreting the Supreme Court’s individual health insurance mandate decision in NFIB v. Sebelius. When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not […]