National Review has posted a symposium on this week’s ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here’s an excerpt from my piece: This week’s Supreme Court oral argument did not go well […]
Archive | Health Care
Some Tentative Thoughts on the Medicaid Case
In all the hoopla over the individual mandate, most people (myself emphatically included) have not devoted enough attention to the other big Obamacare case before the Court: the 26 states’ challenge to to the part of the act requiring the states to massively expand Medicaid coverage (covering every non-elderly with an income up to 138% […]
Nearing the end of the search for the non-existent limiting principles
By David Kopel on March 29, 2012 4:47 am in Commerce Clause, Constitutional Law, Federalism, Fifth Amendment, Growth of Government, Guns, Health Care, Individual Mandate, Necessary and Proper, New Class, Regulation, Supreme Court, Taxes, Uncategorized
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over […]
Crediting/Blaming the VC for the Possible Defeat of the Individual Mandate
By Ilya Somin on March 28, 2012 6:03 pm in Federalism, Health Care, Individual Mandate, Public Opinion
Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.: Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At […]
Democratic Congressman and Senators on Constitutional Authority for the ACA
Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?” Here are a few more pearls of constitutional wisdom from our elected representatives. Rep. Conyers cited the “Good and Welfare Clause” as […]
Lithwick’s Lament
Shorter Dalhia Lithwick: The mandate must be constitutional because it’s compassionate to care about others. Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other. Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the […]
More Bad News for the Federal Government’s Argument that the Individual Mandate is a Tax
By Ilya Somin on March 27, 2012 11:42 pm in Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Yesterday, I pointed out that even many of the liberal Supreme Court justices were skeptical of arguments that the individual mandate qualifies as a tax under the Anti-Injunction Act, and suggested that this was not a good sign for the federal government’s claim that the mandate is a tax authorized by the Tax Clause of […]
Has the Pro-ACA Side Come up with a “Limiting Principle?”
Sorry to keep reiterating this point, but I’ve contended since December 2010 that if the pro-ACA side is unable to articulate a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority […]
Thoughts on the Individual Mandate Oral Argument
By Ilya Somin on March 27, 2012 7:15 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other […]
Justices Skeptical of Claims that the Individual Mandate is a Tax
By Ilya Somin on March 26, 2012 1:16 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is […]
My CNN Column on the Individual Mandate Case
By Ilya Somin on March 26, 2012 9:44 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt: This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is […]
Guns, Broccoli and the Individual Mandate – Thoughts on the Eve of Argument
Is Department of Health and Human Services v. Florida a replay of United States v. Lopez? I suggested as much in an October 2010 post, in which I wrote: n both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported […]
My New York Times Room for Debate Forum Piece on the Individual Mandate Case
The New York Times Room for Debate Forum has recently posted a set of short op eds by experts on both sides of the upcoming health care cases. My own contribution to the Forum is here. Here’s an excerpt: The individual health insurance mandate case raises momentous issues about the limits of federal power. As […]
Shortcomings of the “Everyone Uses Health Care” Rationale for the Individual Mandate
The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case. The most popular one, […]
False Arguments in Favor of the Mandate
There are serious arguments in support of the constitutionality of the individual mandate (just as there are serious arguments against it). There are also quite a few bad arguments, and quite a few that rest on patently false premises. A common example of the latter is that the mandate does not require anyone to engage […]