When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that […]
Archive | Health Care
Health insurance mandate as a privacy right violation
Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate, include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbart’s website. The 29-page […]
Did Congress Understand the Health Bill It Passed?
Today’s New York Times presents evidence that it did not. It is often said that the new health care law will affect almost every American in some way. And, perhaps fittingly if unintentionally, no one may be more affected than members of Congress themselves.In a new report, the Congressional Research Service says the law may […]
The Democratic Strategist misdescribes some legal issues
By David Kopel on April 13, 2010 12:44 am in Constitutional History, Health Care, Politics, Religion and the Law, Religious Freedom, Supreme Court
The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide “serious, data-based discussion of Democratic political strategy.” Today, a special “Urgent” issue was published, regarding the Supreme Court and warning about the “covert extremist agenda” of the Republican right. The report raises an alarm about the legal agenda currently promoted […]
Inaccurate legal claim from the Democratic Governors Association
Today Nathan Daschle, Executive Director of the Democratic Governors Association, emailed me, as he does once every week or two. This week, his topic was urging me to sign a petition against the State lawsuits filed against Obamacare. [BTW, “Obamacare” is a standard part of political discourse, used by, inter alia, Michael Barone, one of […]
My Upcoming Notre Dame Speech on the Constitutionality of the Health Care Mandate
This Thursday at 12:30 PM, I will be speaking at Notre Dame Law School on the constitutionality of the new health care law, especially focusing on the provision mandating that individuals purchase health insurance even if they prefer not to. I was invited by the Notre Dame Federalist society. The event will be held in […]
An Act for the Relief of Sick and Disabled Seamen
This 1798 statute (5 Cong. Ch. 77, July 16, 1798, 1 Stat. 605) is currently making the blogospheric rounds as purported proof that the 2010 congressional mandate to purchase health insurance from a private company is based on long-established practice. Incorrect. Sections 1 and 2 of the act impose a 20 cent per month tax […]
Destroying the Constitution’s Structure is not Constitutional
By David Kopel on April 2, 2010 3:38 am in Constitutional History, Constitutional Theory, Federalism, Fourteenth Amendment, Health Care, Militia, Taxes
Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which […]
Standing and Ripeness Issues in the Lawsuits Against Obamacare
This is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the individual mandate and various mandates and grant conditions imposed by the […]
The Myth of an Expert Consensus on the Constitutionality of the Health Care Mandate Revisited
Back in December, I wrote a post debunking “The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate.” Despite claims by some Democratic politicians and activists, there are numerous prominent constitutional law scholars who believe that the mandate is unconstitutional. I noted several of them in my post, including Richard […]
Pretending that no law professors question Obamacare
Back in 1989, National Public Radio reporter Nina Totenberg attempted to portray the individual rights view of the Second Amendment as a fringe position with no academic support. She claimed that the National Rifle Association had been unable to provide her with names of any professors who thought the Second Amendment was an individual right. […]
Was the Individual Mandate a “Republican Idea”?
Many commentators have noted that the individual mandate is an idea that some Republican politicians and right-of-center thinkers used to support. Over the weekend the Associated Press reported that many on the right once championed an individual mandate as part of a broader health care overhaul. Not only does the Massachusetts health care reform championed […]
The Wave of Corporate Writedowns
In the past several days, several major corporations have announced substantial writedowns in response to the new health care law. These include Deere & Co. ($150 million), Caterpillar ($100 million), AK Steel Holding ($31 million), and 3M ($85-90 million). Yesterday, AT&T joined the list, announcing it would take a $1 billion charge against future earnings. […]
“Federalist Society Types” Were Committed to Judicial Enforcement of Federalism Long Before Obamacare
By Ilya Somin on March 25, 2010 10:46 pm in Commerce Clause, Federalism, Federalist Society, Health Care, Taxing and Spending Clause
University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most […]
President Obama Claimed that the Individual Mandate is Not a Tax
As I discussed in this post, some academic defenders of the health care bill’s insurance mandate claim that it is constitutional as an exercise of Congress’ power to tax. That argument has been advanced by by prominent scholars such as Jack Balkin, Vik Amar (in a recent debate with me), and others. It may therefore […]