USC medical school professor Ken Murray has an interesting article on the lessons we can learn from “How Doctors Die”: It’s not a frequent topic of discussion, but doctors die, too. And they don’t die like the rest of us. What’s unusual about them is not how much treatment they get compared to most Americans, […]
Archive | Health Care
Supreme Court: “Obviously, direct control of medical practice in the states is beyond the power of the federal government.”
By David Kopel on December 1, 2011 5:54 pm in Constitutional History, Constitutional Law, Health Care, Taxing and Spending Clause, Tenth Amendment
So said the unanimous Supreme Court in United States v. Linder, 268 U.S. 5 (1925). The opinion was written by McReynolds, and joined by the progressive Justices Brandeis and Holmes, along with the rest of the Court. At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly […]
Will the Necessary & Proper clause save Obamacare? Not if the Court follows McCulloch v. Maryland
By David Kopel on November 17, 2011 4:33 pm in Constitutional History, Constitutional Law, Health Care, Necessary and Proper
Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online. In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain […]
Another ObamaCare Glitch
As I discussed in this post, the IRS is proposing to give tax credits as premium assistance more broadly than is authorized by the text of the Patient Protection and Affordable Care Act (PPACA). Specifically, the law only authorizes such premium assistance for health insurance purchased in state health care exchanges, but the IRS is […]
BREAKING – High Court to Hear Health Care Challenges
By Jonathan H. Adler on November 14, 2011 10:06 am in Health Care, Individual Mandate, Supreme Court
The Supreme Court has granted certiorari in several of the health care cases, granting the Florida’s, NFIB’s and the federal government’s petitions, including consideration of the Tax Injunction Act issue, and granting extended argument time. I suspect SCOTUSBlog will have a full report shortly. NOTE: Here is SCOTUSBlog’s health care litigation page, and here is […]
Levy Itzhak Rosenbaum Becomes First Person Convicted of Brokering Kidney Sales in the US
Brooklyn resident Levy Itzhak Rosenbaum recently became the first person convicted of brokering the sale of kidneys in the United States [HT: George Mason law student Michael Mortorano]. The real tragedy here is not what Rosenbaum did, but the fact that organ sales are illegal to begin with. Legalizing them would save thousands of lives […]
The Broccoli Slippery Slope vs. the Epidemic Slippery Slope
By Ilya Somin on October 31, 2011 6:41 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall): The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. […]
What Should the Supreme Court do with the Obamacare Case?
By David Kopel on October 3, 2011 1:07 pm in Commerce Clause, Constitutional Law, Health Care, Individual Mandate
That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others. My answer to what […]
Federal District Court in Pennsylvania Strikes Down Individual Mandate
By Ilya Somin on September 13, 2011 3:10 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding […]
Why the Obamacare penalty is not a “tax”
Rob Natelson explains it all in his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it’s a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it’s […]
The IRS Wants to Give Tax Credits for Health Insurance Purchases Beyond Those Provided for in the ACA
By Jonathan H. Adler on September 9, 2011 11:43 am in Administrative Law, Federalism, Health Care, Insurance Exchanges, Regulation
The Internal Revenue Service is beginning to promulgate regulations to implement the tax-related provisions of the Affordable Care Act (aka “ObamaCare”). A proposed rule issued last month provides that eligible taxpayers may receive tax credits for the purchase of qualifying health insurance plans established by states under Section 1311 or by the federal government under […]
Fourth Circuit Dismisses Two Challenges to the Individual Mandate on Jurisdictional Grounds
By Ilya Somin on September 9, 2011 9:10 am in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
On Thursday, the Fourth Circuit Court of Appeals issued two decisions dismissing challenges to the Obama health care plan’s individual mandate on jurisdictional grounds. All three judges on the panel were Democratic appointees, including two chosen by President ObamaNeither ruling reached the merits of the question of whether the individual mandate is constitutional. Virginia v. […]
My RegBlog Post on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 18, 2011 2:35 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject. RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be […]
More Individual Mandate Commentary Coming Soon
I recognize that I have been somewhat derelict in failing to post additional commentary on the Eleventh Circuit’s important decision striking down the individual mandate. Unfortunately, I was away at a friend’s wedding this weekend, and testifying before the US Commission on Civil Rights on Friday. Plus, it took some time to read the court’s […]
Distinguishing Wickard
By Jonathan H. Adler on August 14, 2011 12:59 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Another interesting portion of the Eleventh Circuit’s decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court’s opinion notes, the Supreme Court (in Lopez) characterized Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” As a consequence, the Eleventh Circuit concluded, Wickard “provides […]