Co-blogger Jonathan Adler points out several weaknesses in the collective action theory approach to interpreting constitutional federalism advocated by a number of academics, most notably Robert Cooter and Neil Siegel. The theory has been used as a tool for defending the constitutionality of the individual mandate, though I have argued that it may actually cut […]
Archive | Health Care
The Search for a Limiting Principle for Federal Power: Collective Action Problems
Many of those who urge the Supreme Court to uphold the constitutionality of the individual mandate recognize that the Court is unlikely to take this step without identifying a “limiting principle” that cabins the scope of federal power in some meaningful way. While some deride the search for a limiting principle as unnecessary, others recognize […]
Jeffrey Rosen’s Proposed Limiting Principles for Federal Power
By Ilya Somin on May 29, 2012 5:44 pm in Collective Action Problems, Commerce Clause, Federalism, Health Care, Individual Mandate
In a recent response to critics of his earlier column on the individual mandate case, Jeffrey Rosen claims that upholding the individual mandate would not lead to unlimited congressional power because “Congress [still] cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective […]
McConnell on “The Liberal Legal Meltdown Over ObamaCare”
By Jonathan H. Adler on May 25, 2012 8:16 am in Federalism, Health Care, Individual Mandate, Uncategorized
In today’s WSJ, Stanford law professor and former federal appellate judge Michael McConnell has an op-ed commenting on the tone and content of much liberal commentary on the individual mandate litigation. It begins: In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal […]
When is it Legitimate for Judges to Base Constitutional Decisions on their Perceived Legitimacy?
By Ilya Somin on May 24, 2012 10:00 am in Constitutional Theory, Health Care, Individual Mandate, Public Opinion
In a previous post, I argued that Supreme Court justices should not decide the individual mandate case based on the decision’s effect on their perceived “legitimacy.” Mark Tushnet asks, why not? [W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s […]
Lochner and the Individual Mandate Revisited
By Ilya Somin on May 23, 2012 3:28 pm in Economic LIberties, Federalism, Health Care, Individual Mandate, Libertarianism
Various defenders of the individual mandate have long argued that if the Court strikes down the law, it is likely to lead to the resuscitation of Lochner v. New York and the invalidation of a wide range of economic regulations. This meme has most recently been taken up by Jeffrey Rosen, who claims that striking […]
Nonlegal Arguments for Upholding the Individual Mandate
By Ilya Somin on May 21, 2012 5:57 pm in Commerce Clause, Conservatism, Constitutional Theory, Federalism, Health Care, Individual Mandate, Public Opinion
Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly […]
Catholic Institutions Sue Over Contraception Mandate
By Jonathan H. Adler on May 21, 2012 4:25 pm in Health Care, Religion and the Law, Religious Freedom
Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports here and here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of […]
The PPACA in Wonderland
By David Kopel on May 18, 2012 11:21 pm in Constitutional Law, Constitutional Theory, Federalism, Health Care, Individual Mandate
That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview […]
Jonathan Rauch on the Individual Mandate Case
By Ilya Somin on May 7, 2012 2:39 pm in Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
In general, I am a big fan of the work of columnist Jonathan Rauch. Unfortunately, his recent column on the individual mandate case is not one of his better pieces. The problem is not that he comes down on what I think is the wrong side of the issue, but that some of his points […]
Post-Argument Polling on Health Care Reform
The Kaiser Family Foundation just released its most recent polling on health care reform — its first tracking poll since last month’s oral argument in the Supreme Court. The poll finds little change in public opinion about the mandate. A majority of respondents both want and expect the Supreme Court to strike down the individual […]
Post-argument debate on the constitutionality of Obamacare
By David Kopel on April 18, 2012 12:00 am in Commerce Clause, Constitutional History, Constitutional Law, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.
Larry Lessig on the Politics of the Supreme Court’s Federalism Jurisprudence
By Ilya Somin on April 15, 2012 11:30 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation: The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. […]
Poll: Two-thirds of Americans Want Supreme Court to Throw Out Individual Mandate
The Washington Post reported today on findings from a new Washington Post/ABC News poll. According to the Post‘s story, when asked whether they expect “the Supreme Court justices will rule on this case mainly (on the basis of the law) or mainly (on the basis of their partisan political views),” 50 percent chose “partisan political views” while […]
Individual Mandates for Foreigners and Indians
By Eugene Kontorovich on April 6, 2012 11:19 am in Commerce Clause, Constitutional Law, Health Care, Individual Mandate, Supreme Court
In my previous post, I argued that the broad interpretation of the Commerce Clause advocated by the government would have the absurd result, when applied to the parallel foreign commerce clause, of allowing Congress to impose mandates on foreigners with no prior contacts with the U.S. Many commentators fought the hypothetical, saying such a law […]