Conor Friedersdorf has a hard time taking seriously many commentators who complain a decision striking down the individual mandate would be an unprecedented exercise of “judicial activism.” I don’t doubt that movement liberals will be upset if the individual mandate is struck down. But what exactly would the reaction against such a decision look like? […]
Archive | Health Care
Can Congress Mandate the Japanese to Buy Detroit Cars? – The Commerce Clause and Foreign Commerce
By Eugene Kontorovich on April 4, 2012 3:09 pm in Alien Tort Statute, Federalism, Health Care, Individual Mandate, International Human Rights Law, International Law, Supreme Court
One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard […]
More on Koppelman on Federalism
Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case. Just a few points: […]
The Political History of the Individual Mandate
Avik Roy of Forbes has an interesting post outlining how numerous liberal politicians and activists vociferously opposed the individual health insurance mandate until it was incorporated into the Obama administration’s health care plan. As Roy notes, Obama himself strongly opposed the mandate when Hillary Clinton proposed it during the 2008 presidential campaign. He was far […]
Federalism, Freedom, and the Individual Mandate
Defenders of the individual mandate often argue that the concerns about individual liberty raised by the mandate’s opponent’s are overblown, because most of the latter concede that the Constitution allows state governments to impose similar mandates. A health insurance mandate imposed by a state such as Massachusetts seems no less oppressive than one adopted by […]
President Obama versus the Constitution
By David Kopel on April 2, 2012 11:54 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, Federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, Obama, Presidency, Public Opinion, Supreme Court, Uncategorized, War on Terror
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was […]
The Ethics of Advocacy Blogging
Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of […]
The President vs. the Court
By Jonathan H. Adler on April 2, 2012 9:27 pm in Federalism, Health Care, Individual Mandate, Supreme Court
At a joint press conference today with President Calderon of Mexico, and Prime Minister Harper of Canada, President Obama was asked whether, in light last week’s oral arguments, he was concerned the Supreme Court might strike down the individual mandate or other portions of his health care reform law. According to the White House transcript, […]
Koppelman on Health Care and Child Labor
By David Bernstein on April 2, 2012 1:49 am in Constitutional History, Constitutional Law, Health Care
My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes: The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “all […]
Underestimating the Chances of the Anti-Mandate Lawsuits
Co-blogger Jonathan Adler rounds up some of the commentary discussing how many liberal pundits underestimated the chances of the anti-mandate lawsuits. After last week’s oral arguments, it now seems clear that many liberal commentators did grossly miscalculate on this issue. At the same time, it is fair to point out that some conservative and libertarian […]
Andy Koppelman wonders: Are people who disagree with him just stupid, or are are they insane?
By David Kopel on April 1, 2012 4:48 pm in Constitutional Law, Constitutional Theory, Health Care, Individual Mandate, Psychology, Uncategorized
For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item […]
My Regblog Analysis of the Individual Mandate Oral Argument
By Ilya Somin on March 31, 2012 1:46 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
I recently published an analysis of the individual mandate oral argument for the University of Pennsylvania Regblog site. It goes through all nine justices and assesses their probable views on the mandate based on both their oral argument performance and their previous records on federalism issues: This week’s oral arguments before the Supreme Court shed […]
Why Did Legal Elites Underestimate the Case Against the Mandate?
By Jonathan H. Adler on March 30, 2012 11:53 am in Academia, Health Care, Individual Mandate, Supreme Court
Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts […]
Citizens United or Kelo?
In my contribution to the NRO symposium Ilya mentions below I address the claims made by liberal commentators that the Supreme Court would sacrifice its own credibility were it to strike down the individual mandate. Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have […]
The Inconsistency Between the Constitutional Arguments for the Mandate and Medicaid in the ACA
By Eugene Kontorovich on March 29, 2012 6:20 pm in Constitutional Law, Economy, Federalism, Health Care, Individual Mandate, Supreme Court
Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA… There is a serious inconsistency between the government’s arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial […]