For readers who may be interested, I will be on C-SPAN’s Washington Journal from 8 to 8:30 AM tomorrow to talk about the upcoming Supreme Court oral argument on the Anti-Injunction Act, and whether or not it precludes the individual mandate lawsuit. The AIA issue is somewhat technical. But it does tie in to one […]
Archive | Health Care
Public Opinion, Sympathetic Plaintiffs, and the Individual Mandate Case
By Ilya Somin on March 23, 2012 8:44 pm in Federalism, Health Care, Individual Mandate, Public Opinion
In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion: Some say that the challengers to the individual mandate can win even if they […]
Audio of My Recent NPR Individual Mandate Discussion with Professor Vikram Amar
Earlier today, UC Davis lawprof Vikram Amar and I were on a KQED NPR radio program discussing the individual mandate litigation. Amar believes that the Court should uphold the mandate whereas I, of course, do not. The audio is available here: One thing I notice about these radio exchanges is that there is a tremendous […]
The Individual Mandate Case is Not Easy
Linda Greenhouse and Dahlia Lithwick have attempted to resuscitate the claim that the individual mandate is so obviously constitutional that only ignorance or political bias can lead anyone to believe otherwise. Such claims were perhaps understandable back when this litigation began. But even then, there was no expert consensus on the constitutionality of the mandate. […]
The Congress Can-Do-Whatever-it-Wants Power
As I’ve argued several times before, the Supreme Court’s conservative majority will not uphold the individual mandate if the mandate’s defenders are unable to come up with a limiting principle that will prevent a decision upholding the law from eviscerating any remaining limits on Congress’s power to regulate interstate commerce. (Which is not to say […]
The Individual Mandate Litigation: What’s Lochner got to do with It?
By David Bernstein on March 21, 2012 9:24 pm in Academia, Constitutional History, Constitutional Law, Health Care
I have an op-ed up at Jurist Forum. Here’s how it starts: With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting […]
The Politics of Mandates
In a recent post, co-blogger Orin Kerr suggests that polls showing the unpopularity of the individual health insurance mandate prove that slippery slope concerns about upholding the mandate case may be unfounded, because “mandates are just political losers.” Some mandates are indeed political losers. But as I explain in the forthcoming article that Orin kindly […]
Holtz-Eakin and Smith on the Individual Mandate
Former CBO Director Douglas Holtz-Eakin and Nobel Laureate economist Vernon Smith had an op-ed in today’s WSJ on the “flawed economic foundations” of the Affordable Care Act. On the individual mandate, they write: The Obama administration defends the mandate on the ground that a person’s decision to not buy health insurance affects commerce by materially increasing […]
Public Opinion, the Individual Mandate, and the Supreme Court
By Ilya Somin on March 19, 2012 6:10 pm in Federalism, Health Care, Individual Mandate, Public Opinion
A recent Washington Post/ABC poll shows that 68% of the public want the Supreme Court to strike down the individual health insurance mandate. That includes 42% who want the Court to invalidate the entire Affordable Care Act and 26% who want it to strike down the mandate alone. If forced to choose, 52% of those […]
Politico’s “Four Hard Truths of Health Care Reform”
On Friday, Politico reported that President Obama’s “signature promise” about the Affordable Care Act — that “if you like your health care plan, you can keep your health care plan” — “turns out” not to be true for many people. This is “an inconvenient truth at a really inconvenient time.” Moreover, as Politico notes, the law is not achieving […]
Administration Proposes Contraception Compromise
Yesterday, the Department of Health and Human Services proposed a compromise to quell concerns about the contraception mandate. Although the intent to offer a compromise had been announced before, HHS did not outline an actual proposal and initiate a proposed rulemaking until yesterday. The proposal largely follows what the administration announced previously, with the exception […]
A Possible Shift of Emphasis in the Federal Government’s Defense of the Individual Mandate
By Ilya Somin on March 16, 2012 3:46 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
The Hill has a story claiming that the federal government has changed its defense of the individual mandate to emphasize the Necessary and Proper Clause more: The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court. Written briefs in the landmark case increasingly have […]
C-SPAN Video of my WLF Debate on the Individual Mandate Litigation with Andrew Pincus
For readers who may be interested, C-SPAN has posted the video of my recent debate on the individual mandate litigation with Andrew Pincus of Mayer Brown, a well-known appellate litigator who has argued many Supreme Court cases. The event took place at the Washington Legal Foundation, on whose behalf I wrote an amicus brief in […]
Ending the Conflict Over Contraception
Virginia Postrel suggests an easy way to expand access to contraception without risking any imposition on religious institutions: Make oral contraceptives available without a prescription. True, making the pill available over the counter could reduce the amount of outrage and invective available for entertaining radio audiences, spurring political fundraising and otherwise amusing the American public. […]
Washington Legal Foundation Debate on the Individual Mandate Litigation
Next Tuesday, March 13, from 9:30 to 10:30, I will be taking part in a debate on the individual mandate litigation at the Washington Legal Foundation. Joining me will be Andrew Pincus of Mayer Brown, counsel for a group of constitutional law professors who filed an amicus brief supporting the constitutionality of the mandate. I […]