Orin has replied to my post explaining why current Supreme Court doctrine doesn’t support the constitutionality of the Obamacare individual mandate under the Necessary and Proper Clause. He makes three points that I will briefly answer. First, Orin suggests that current Supreme Court doctrine gives a broad interpretation of the word “proper” in the Clause. […]
Archive | Health Care
Necessary and Proper Clause Doctrine and the Individual Mandate
By Ilya Somin on October 6, 2010 4:25 am in Federalism, Health Care, Individual Mandate, Necessary and Proper
In a recent post, co-blogger Orin Kerr outlines what has become the standard argument that the Obama health care plan’s individual mandate is authorized by the Necessary and Proper Clause. The claim is that the goal of the legislation is to regulate commerce in health insurance (which, under current doctrine, is a permissible end under […]
Gonzales v. Raich and the Individual Mandate
By Ilya Somin on October 5, 2010 1:10 am in Commerce Clause, Federalism, Health Care, Individual Mandate
The Supreme Court’s 2005 decision in Gonzales v. Raich ruled that Congress’ power to regulate interstate commerce gives it the power to ban possession of medical marijuana that had never crossed state lines or been sold in any market anywhere. It was easily the broadest-ever Supreme Court interpretation of the Commerce Clause. When I first […]
The ACA Litigation Blog
Those of our readers interested in the litigation over the Obama health care plan should check out University of Santa Clara lawprof Brad Joondeph’s extremely helpful ACA Litigation blog. Joondeph has performed a valuable public service by making all the many briefs, documents, and motions in the Florida and Virginia health care cases available in […]
Our Amicus Brief in the Virginia Case Challenging the Constitutionality of the Obama Health Care Plan
By Ilya Somin on October 4, 2010 4:07 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause
Today, we filed an amicus brief in Virginia v. Sebelius, one of the cases challenging the constitutionality of the Obama health care plan’s individual mandate, which requires nearly all Americans to purchase health insurance by 2014 or pay a fine. I wrote the brief on behalf of the Washington Legal Foundation, a leading pro-free market […]
Taking Stock of Comstock
By Ilya Somin on October 1, 2010 2:56 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
My recent Cato Supreme Court Review symposium article on United States v. Comstock is now available on SSRN. The case has important potential implications for the litigation over the constitutionality of the Obama health care plan. Here’s the abstract: Those who argue that the federal government has nearly unlimited authority often cite the Necessary and […]
Cordray v. Fisher on the Constitutionality of ObamaCare
Today’s Constitution Day program at Case Western Reserve University is a debate on the constitutionality of health care reform between Ohio Attorney General Richard Cordray and Indiana Solicitor General Thomas Fisher. Indiana is among the states that have challenged the constitutionality of the program; Ohio is not. I’m liveblogging this event below the fold. I’ll […]
Re: The First Part of ObamaCare to Go?
I asked the question yesterday. Today Politico reports: “For the first time, the White House is asking Congress to amend the finished health care overhaul. The Obama administration Monday urged senators to scale back a tax reporting requirement in the health care law.” Specifically, Secretaries Tim Geithner and Kathleen Sebelius wrote to the Senate leadership in […]
The First Part of ObamaCare to Go?
The NYT reports on growing bipartisan support for repealing one of the tax provisions contained in the health care reform legislation. To improve compliance, the law requires businesses to file a 1099 tax form identifying anyone to whom they pay $600 or more for goods or merchandise in a year. Businesses will also have to […]
ObamaCare on Campus
Kaiser Health News has an interesting report on the effects recent health care reform could have on health care plans some universities offer to students. Colleges and universities say that some rules in the new health law could keep them from offering low-cost, limited-benefit student insurance policies, and they’re seeking federal authority to continue offering […]
Deference and the Constitutionality of Health Care Reform
As constitutional challenges to the new health care law work their way up the courts, proponents of the the law’s constitutionality will inevitably argue that the Supreme Court should defer to Congress’s understanding of its own constitutional powers, especially when it comes to such significant legislation. As early as 1922, the Supreme Court wrote, “Whatever […]
Are Right and Left Changing Where They Stand on Standing?
By Ilya Somin on August 18, 2010 10:00 pm in Conservatism, Constitutional Law, Constitutional Theory, Gay Marriage, Health Care, Standing
Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on […]
The Individual Health Care Mandate and Enumerated Powers – Event Audio
By David Kopel on August 7, 2010 6:07 pm in Constitutional Law, Federalism, Health Care, Necessary and Proper, Taxing and Spending Clause, Tenth Amendment
The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale), Gillian Metzger (Columbia), and me (Denver, VC). The moderator was Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran […]
Florida’s brief in health control lawsuit
The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss.
My Washington Examiner Op Ed on The Recent Ruling in the Virginia Health Care Lawsuit
By Ilya Somin on August 5, 2010 5:16 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause
The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post: Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan. The suit […]