The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here: Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted […]
Archive | Health Care
The Mandate Decision and Public Perception of the Court
Before the Supreme Court’s decision in NFIB v. Sebelius, many predicted the decision would influence public perceptions of the Court and its legitimacy. If a new Rasmussen poll is to believed, the decision has had some such effect already. From the poll summary: A week ago, 36% said the court was doing a good or […]
Barack Obama’s Ironically Prescient Speech Opposing John Roberts’ Nomination to the Supreme Court
By Ilya Somin on June 30, 2012 10:34 pm in Federalism, Health Care, Individual Mandate, Supreme Court
In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient: There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the […]
New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision
By Ilya Somin on June 30, 2012 9:49 pm in Federalism, Health Care, Individual Mandate, Public Opinion
A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin. This is a significantly smaller […]
If the Mandate Is a Tax . . .
I was asked this question last night, and I’m not sure of the answer: If the mandate is a tax, does this mean it could be repealed through the reconciliation process?
Of Silver Linings and Clouds
By Ilya Somin on June 29, 2012 10:07 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s USA Today quotes me on the individual mandate decision as follows: “You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Reasons for Cheer
From James Stewart’s “Common Sense” NYT column: Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on […]
The Chief Gets No Respect
I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision. Last week, in poking fun […]
Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions
By Ilya Somin on June 29, 2012 6:31 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power: The obvious […]
National Review Symposium on the Health Care Decisions
For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here: Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also […]
Do the Court’s Commerce Clause and Necessary and Proper Clause Rulings in the Individual Mandate Case Matter?
By Ilya Somin on June 29, 2012 2:44 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant […]
SCOTUSBlog Commentary: “Lose the battle, win the war?”
My contribution to the SCOTUSBlog post-decision symposium elaborates on some of the points I made in my early Bench Memos post on the decision. Here are some excerpts: For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a […]
Where Richard Friedman and I Agree
By Ilya Somin on June 28, 2012 11:35 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Note the close parallels between my statements in this CBS News report and on the mandate decision, and those of University of Michigan law professor Richard Friedman, a well-known liberal legal scholar. It’s almost as if we coordinated our remarks in advance. But in truth I had no idea what he said until I read […]
Assessing My Individual Mandate Predictions
Now that the individual mandate case has been decided, it’s worth taking a look at what I got right and wrong in making predictions about the case in advance. I think the record is a mixed bag. On the plus side, I was right to insist from early on that this was a close case […]