The case is United States v. Kebodeaux (5th Cir. July 6, 2012) (en banc): While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was […]
Archive | Federalism
Leaks, Counter-Leaks and the Reason for Roberts’ Switch
Amidst all of the leaks and counter-leaks about the process that led to last week’s individual mandate decision, I find it significant that the pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he […]
A Simple Solution to the Holding vs. Dictum Mess
By Ilya Somin on July 2, 2012 3:47 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself […]
My Politico Post Assessing the Individual Mandate Decision
By Ilya Somin on July 1, 2012 11:36 pm in Federalism, Health Care, Individual Mandate, Supreme Court
The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here: Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted […]
Barack Obama’s Ironically Prescient Speech Opposing John Roberts’ Nomination to the Supreme Court
By Ilya Somin on June 30, 2012 10:34 pm in Federalism, Health Care, Individual Mandate, Supreme Court
In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient: There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the […]
New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision
By Ilya Somin on June 30, 2012 9:49 pm in Federalism, Health Care, Individual Mandate, Public Opinion
A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin. This is a significantly smaller […]
Of Silver Linings and Clouds
By Ilya Somin on June 29, 2012 10:07 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s USA Today quotes me on the individual mandate decision as follows: “You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws […]
Reasons for Cheer
From James Stewart’s “Common Sense” NYT column: Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on […]
Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions
By Ilya Somin on June 29, 2012 6:31 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power: The obvious […]
NFIB as Marbury
By David Kopel on June 29, 2012 6:25 pm in Constitutional History, Constitutional Law, Federalism, Individual Mandate, Politics, Spending Clause, Supreme Court, Taxing and Spending Clause, Unconstitutional Conditions
My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that […]
National Review Symposium on the Health Care Decisions
For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here: Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also […]
Do the Court’s Commerce Clause and Necessary and Proper Clause Rulings in the Individual Mandate Case Matter?
By Ilya Somin on June 29, 2012 2:44 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant […]
Where Richard Friedman and I Agree
By Ilya Somin on June 28, 2012 11:35 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Note the close parallels between my statements in this CBS News report and on the mandate decision, and those of University of Michigan law professor Richard Friedman, a well-known liberal legal scholar. It’s almost as if we coordinated our remarks in advance. But in truth I had no idea what he said until I read […]
Assessing My Individual Mandate Predictions
Now that the individual mandate case has been decided, it’s worth taking a look at what I got right and wrong in making predictions about the case in advance. I think the record is a mixed bag. On the plus side, I was right to insist from early on that this was a close case […]
Thoughts on the Medicaid Spending Clause Decision
While the 26 state plaintiffs ultimately lost the case challenging the constitutionality of the individual mandate, they partially prevailed on the other federalism case decided today: the challenge to provisions of the Affordable Care Act requiring states to massively expand Medicaid coverage or lose all of their federal Medicaid funds. The Supreme Court ruled that […]