Leon Neyfakh of the Boston Globe has a detailed article discussing Yale Law School Professor Heather Gerken’s outstanding work developing a new “progressive” theory of federalism: Election reformers tend to shudder at the patchwork inconsistency with which the United States approaches its national elections, and they regard the process as a woefully disorganized mess. Yale […]
Archive | Federalism
Ninth Circuit Upholds Sex-Offender Registration as “Necessary and Proper” Under NFIB v. Sebelius
Today the U.S. Court of Appeals for the Ninth Circuit rejected a constitutional challenge to federal sex offender registration requirements under SORNA. Specifically,in United States v. Elk Shoulder, the court rejected a claim that the registration requirement was beyond the scope of Congress’s enumerated powers because so long as Congress had the authority to enact […]
Does the Supremacy Clause mean that the federal government always wins?
By David Kopel on October 2, 2012 6:05 pm in Constitutional Law, Criminal Procedure, Federalism, Habeas, Supreme Court
Last week, I filed an amicus brief on behalf of petitions for certiorari in Chafee v. United States and Pleau v. United States. These related cases could be among the most important federalism cases before the Court this term. The amici are the Cato Institute and the Independence Institute. The State of Rhode Island and […]
Upcoming Appearances at the University of Minnesota and the University of Tulsa
For those who may be interested, I am going to be speaking at the University of Minnesota Law School and the University of Tulsa this week. On Wednesday at 12:15 PM, I will be debating University of Minnesota Professor Fred Morrison about the Supreme Court’s health care decision at the University of Minnesota Law School, […]
The Rise of Secessionism in Catalonia
Time has an interesting recent article highlighting the rise of secessionism in Catalonia. Many more Catalans than in the past want to secede from Spain because of the way the central government takes far more money out of the province than it puts back in: Sept. 11 always brings Barcelonans into the streets to dance […]
Akhil Amar on the Application of the Fourteenth Amendment to the Federal Government
I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government […]
Federalism, Bond v. United States, and the Treaty Power
When we last we heard of the case of Bond v. United States, the Supreme Court had ruled that a criminal defendant can challenge the constitutionality of a federal statute she was charged with violating on the grounds that it exceeds the scope of congressional power under the Constitution. In a rare unanimous decision on […]
Would the North be Better Off Without the South?
The New York Times has a review of a recent book by travel writer Chuck Thompson which argues that the rest of the country would be better off if the South seceded. In the nineteenth century, the main advocates of secession were southern supporters of slavery, though a few northerners flirted with the idea too. […]
Debate over the Individual Mandate Decision at the University of Toledo
This Thursday at noon, I will be debating the Supreme Court’s recent decision upholding the individual health insurance mandate, at the University of Toledo College of Law. Toledo law professor Rebecca Zietlow, author of several important articles on the health care law and related issues, will be defending the constitutionality of the mandate. For my […]
How to Respond to the Individual Mandate Decision
My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it: In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. […]
A Whale of a Federal Case
In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution: The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of […]
Legitimacy, Popularity, and the Individual Mandate Decision
By Ilya Somin on July 13, 2012 5:59 pm in Federalism, Health Care, Individual Mandate, Public Opinion
In response to my post arguing that Chief Justice Roberts’ vote in the individual mandate decision failed to enhance the Supreme Court’s legitimacy, co-blogger Orin Kerr argues that Roberts may have been motivated by a different definition of legitimacy, one seemingly unrelated to popularity: If Roberts is thought to have been influenced by public pressure, […]
The Impact of the Individual Mandate Decision on the Supreme Court’s Legitimacy
By Ilya Somin on July 13, 2012 12:57 pm in Federalism, Health Care, Individual Mandate, Public Opinion
Various leaks suggest that Chief Justice John Roberts switched his vote in the individual mandate case in order to protect his own and the Supreme Court’s reputation and enhance their legitimacy. Whether or not that was his objective, it is interesting to ask whether the goal was achieved. Did the decision enhance the Court’s legitimacy […]
Left, Right, and Judicial Review
By Ilya Somin on July 12, 2012 5:43 pm in Conservatism, Constitutional History, Constitutional Theory, Federalism, Health Care, Individual Mandate, Originalism
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests […]
“Statesmanship” and the Individual Mandate Decision
In this recent post, political scientist Steven Teles argues that Chief Justice John Roberts’ decision to uphold the individual mandate was motivated by “statesmanship”: [M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the […]