One of the more interesting passages of the Eleventh Circuit’ decision striking down the individual mandate concerns the “unprecedented” nature of the mandate – a subject that has been much discussed on this blog (see, e.g., here). After cataloging some of the uses to which Congress has put the commerce power, the court observes the […]
Archive | Health Care
The Mandate and the “Mainstream”
By Jonathan H. Adler on August 12, 2011 2:34 pm in Academia, Federalism, Health Care, Individual Mandate
Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps […]
11th Circuit Strikes Down Individual Mandate
The 11th Circuit Court of Appeals has just issued a 2-1 ruling striking down the individual mandate in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit […]
BREAKING – Eleventh Circuit Declares Individual Mandate Unconstitutional
The Reuters story is here. Opinion should be available soon on the Eleventh Circuit’s website. UPDATE: The very lengthy opinion is here. The court split 2-1. Judges Hull and Dubina jointly issued the opinion of the court. Judge Marcus dissented. The court concludes the mandate cannot be justified under either the taxing power or commerce […]
What Does the Mandate Regulate?
Today SCOTUSBlog has posted my contribution to its symposium on “The Constitutionality of the Affordable Care Act.” It begins: The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to “regulate commerce . . . among the several states.” This is no […]
My SCOTUSblog Post on the Future of the Individual Mandate Litigation
By Ilya Somin on August 10, 2011 4:15 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in […]
Scotusblog essays on Obamacare’s constitutionality
By David Kopel on August 3, 2011 11:46 am in Constitutional Law, Federalism, Health Care, Taxing and Spending Clause, Tenth Amendment
This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to […]
My Jurist Op Ed on the Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on July 1, 2011 3:58 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
The Jurist has just published an op ed I wrote criticizing the recent Sixth Circuit decision upholding the individual mandate: This week, the US Court of Appeals for the Sixth Circuit ruled that the individual mandate of federal health care reform is constitutional. This is undeniably a setback for mandate opponents…. Before this decision, judges […]
The Presumption of Constitutionality Revisited
In his response to my post on the mandate cases and the presumption of constitutionality, Orin Kerr argues that the presumption applies to all cases where courts consider the constitutionality of congressional legislation. Orin recognizes that the Supreme Court majority in fact fails to even mention the presumption in many controversial cases where it strikes […]
The “Presumption of Constitutionality” and the Individual Mandate Cases
In a recent post, co-blogger Orin Kerr argues that the “presumption of constitutionality” accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the […]
Re: Facial vs. As-Applied Challenges to the Individual Mandate
Ilya’s post below addresses an important issue in commerce clause litigation: Whether commerce clause challenges should be treated as facial or as-applied challenges and, if the former, how such challenges should be addressed. I largely agree with Ilya’s post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, […]
Judge Sutton on Facial vs. As-Applied Challenges to the Individual Mandate
In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” […]
Today’s Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on June 29, 2011 6:52 pm in Commerce Clause, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold […]
Claeys on Obamacare and the Limits of Judicial Conservatism
By David Bernstein on June 27, 2011 7:08 pm in Constitutional Law, Constitutional Theory, Health Care
My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism: To understand contemporary “judicial conservatism” and its ambiguities, it is helpful to describe it as a series […]
The Incidental Unconstitutionality of the Individual Mandate
By David Kopel on June 24, 2011 7:44 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Necessary and Proper, Originalism
A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011). Gary Lawson (Boston Univ.) and I […]