My recent op-ed in the Orange County Register explains why. In short, the statute says it’s a “penalty,” not a tax, and United States v. Sonzinsky teaches that courts should not speculate that something which Congress calls a “tax” is really a “penalty”–or vice versa. Besides that, it’s not a consitutional tax because: 1. it’s not […]
Archive | Health Care
Health Care Kilo-Waivers
The Hill reports that the Department of Health and Human Services has now issued over 1,000 waivers from requirements imposed by the health care reform law. HHS posted 126 new waivers on Friday, bringing the total to 1,040 organizations that have been granted a one-year exemption from a new coverage requirement included in the healthcare […]
Political Ignorance and Obamacare Repeal
A recent Kaiser poll finds that only 52% of Americans realize that the Obama health care plan has not been repealed, with 22% believing that it has been, and 26% saying they don’t know. The 52% figure probably slightly overestimates the percentage of people who really know the right answer to this question, since some […]
Upcoming Debates on the Individual Mandate Litigation
This week, I will participating in not one but two panels on the individual mandate litigation. The first will be at the Brookings Institution on Wednesday, March 2, where I will be joined by David Rivkin (counsel for the states in the 26 state anti-mandate lawsuit), and also by former acting Solicitor General Walter Dellinger […]
The DC District Court Decision Upholding the Constitutionality of the Individual Mandate
By Ilya Somin on February 23, 2011 12:40 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because […]
Waldman versus Waldman
By David Bernstein on February 7, 2011 10:38 pm in Constitutional Law, Health Care, Individual Mandate
Here are opposing views on the whether the Supreme Court should interpret the Constitution to limit government, or should defer to the elected branches. Both are from Michael Waldman of NYU’s Brennan Center. Waldman 1: Ultimately, America has grown stronger when active citizens, organized pressure groups, and accountable politicians wrestle with large policy challenges. The […]
Upcoming Debate on the Constitutionality of the Individual Mandate
By Ilya Somin on February 7, 2011 3:00 am in American Constitution Society, Federalism, Health Care, Individual Mandate
For those who may be interested, I will be debating the constitutionality of the Obama health care plan individual mandate with Simon Lazarus of the National Senior Citizens’ Law Center on Tuesday night at 7 PM. The debate will be held at the George Mason University Arlington campus, in Founders Hall, Room 134. The debate […]
Akhil Amar’s Defense of the Individual Mandate
By Ilya Somin on February 7, 2011 12:11 am in Commerce Clause, Health Care, Individual Mandate, Taxing and Spending Clause
Yale law professor Akhil Amar is one of the truly great constitutional law scholars of his generation, and I benefited enormously from taking his classes when I was in law school. Unfortunately, his recent LA Times article defending the constitutionality of the Obamacare individual mandate is not an example of his better work. I was […]
Sandefur v. Amar
By David Bernstein on February 6, 2011 11:45 pm in Constitutional History, Constitutional Law, Health Care
I like and respect Yale Law professor Akhil Amar, but his op-ed on the decision invalidating the Obamacare individual mandate is not exactly his best work. Tim Sandefur has a full critique here, which I generally agree with. But what’s most disappointing about Amar’s piece is its rhetoric, which makes it hard to take his […]
“Health Laws of Every Description”: Obamacare and Original Meaning
By David Kopel on February 4, 2011 6:58 pm in Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, Supreme Court
Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland. Gibbons is certainly a good foundation for advocates of strong […]
Will Contraception Coverage Become Mandatory?
Here comes another health care controversy. The health care reform law requires insurers to require “preventative health services” without charge. Does this mean insurers are required to provide contraception without charge? Some government officials think so, according to this NYT report, and the forthcoming guidance on preventative care may so hold. Some religious groups, such […]
The First Part of ObamaCare to Go
Since last year there has been bipartisan support for repealing a provision of the health care reform law that imposes broad 1099 reporting requirements on businesses (see here and here). Yesterday, the Senate voted 81-17 to repeal it.
TV Appearance Discussing the Recent Individual Mandate Decision
For those who may be interested, I will be appearing on the Fox Business Network today at 5 PM eastern time, to discuss the recent district court decision striking down the individual mandate. And for those who will try to use this as evidence that I have somehow sold out to the vast right-wing conspiracy, […]
Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate
By Ilya Somin on January 31, 2011 8:01 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains […]
Judge Vinson rules federal health control unconstitutional
The decision from the Northern District of Florida is available here. In brief: 1. The 26 states lose on the argument that the mandate for drastically increased state spending under Medicaid is unconstitutional. State participation in Medicaid always has been voluntary, and remains so. The states did not argue that the revisions to the Medicaid […]