NFIB v. Sebelius may be over, but the litigation against the PPACA continues. The latest lawsuit comes from Maine, which is challenging the constitutionality of the “maintenance of effort” provisions which require that states maintain whatever Medicaid eligibility standards they had in effect as of the PPACA’s enactment in March 2010. Failure to maintain these […]
Archive | Health Care
House Hearing to Consider Illegal IRS Rule Implementing Health Care Reform
By Jonathan H. Adler on August 2, 2012 1:37 am in Administrative Law, Health Care, Insurance Exchanges
Today the House Committee on Oversight and Government Reform is holding a hearing on the Internal Revenue Service’s role in “Enforcing ObamaCare’s New Rules and Taxes.” Among the subjects of the hearing is a recent IRS rule authorizing tax credits and subsidies for the purchase of qualifying health insurance plans in federally-run exchanges. Although the […]
How to Respond to the Individual Mandate Decision
My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it: In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. […]
Illegal Organ Markets in Europe
A recent New York Times article laments the spread of illegal organ markets in Europe, in which mostly poor people try to sell kidneys and other organs to people who need transplants: Facing grinding poverty, some Europeans are seeking to sell their kidneys, lungs, bone marrow or corneas, experts say…. The spread of illegal organ […]
The Spending Clause: Comparing the Chief’s Opinion and the Joint Dissent
Some conservatives are not big fans of the Chief Justice right now, since they view his opinion upholding the individual mandate “as a valid exercise of Congress’s taxing power [a]s a sell-out of constitutional principle of the first magnitude.” But if you set aside section III-C of his opinion—and I realize that’s a little like, […]
Legitimacy, Popularity, and the Individual Mandate Decision
By Ilya Somin on July 13, 2012 5:59 pm in Federalism, Health Care, Individual Mandate, Public Opinion
In response to my post arguing that Chief Justice Roberts’ vote in the individual mandate decision failed to enhance the Supreme Court’s legitimacy, co-blogger Orin Kerr argues that Roberts may have been motivated by a different definition of legitimacy, one seemingly unrelated to popularity: If Roberts is thought to have been influenced by public pressure, […]
The Impact of the Individual Mandate Decision on the Supreme Court’s Legitimacy
By Ilya Somin on July 13, 2012 12:57 pm in Federalism, Health Care, Individual Mandate, Public Opinion
Various leaks suggest that Chief Justice John Roberts switched his vote in the individual mandate case in order to protect his own and the Supreme Court’s reputation and enhance their legitimacy. Whether or not that was his objective, it is interesting to ask whether the goal was achieved. Did the decision enhance the Court’s legitimacy […]
Chief Justice Roberts and Constitutional Avoidance
At SCOTUSreport.com, Nicholas Quinn Rosenkranz has an excellent post on Chief Justice Roberts’ use of the canon of constitutional avoidance in NFIB v. Sebelius. As Professor Rosenkranz notes, “The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd.” Specifically, the Chief used the canon not to resolve a […]
Left, Right, and Judicial Review
By Ilya Somin on July 12, 2012 5:43 pm in Conservatism, Constitutional History, Constitutional Theory, Federalism, Health Care, Individual Mandate, Originalism
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests […]
“Statesmanship” and the Individual Mandate Decision
In this recent post, political scientist Steven Teles argues that Chief Justice John Roberts’ decision to uphold the individual mandate was motivated by “statesmanship”: [M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the […]
Silver Linings in the Health Care Decision
This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings: The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate […]
Chief Justice Roberts and the window tax
By David Kopel on July 9, 2012 2:27 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Originalism, Taxes, Taxing and Spending Clause
In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.” Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy […]
Leaks, Counter-Leaks and the Reason for Roberts’ Switch
Amidst all of the leaks and counter-leaks about the process that led to last week’s individual mandate decision, I find it significant that the pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he […]
A Simple Solution to the Holding vs. Dictum Mess
By Ilya Somin on July 2, 2012 3:47 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself […]
What Did the Court “Hold” About the Commerce Clause and Medicaid?
Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that […]