SCOTUSblog has just posted a detailed analysis of today’s decision that I did for them. It’s much more thorough than anything I have been able to put up elsewhere. Here is an excerpt: Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued […]
Archive | Health Care
The Tax Issue is Not Just a Technicality
By Ilya Somin on June 28, 2012 6:09 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Some, including co-blogger Orin Kerr, have argued that today’s ruling that the individual mandate is a tax rests on a mere technicality. The mandate could have been a tax if only Congress had labeled it as such or structured it slightly differently, and so it makes sense for the Court to assume that it is […]
My Initial Critique of the Individual Mandate Decision
We have been having technical difficulties that make it almost impossible for us to post on this site. I apologize to our readers. However, I have posted an initial critique of the Court’s decision as an op ed for the New York Daily News, here: Today’s 5-4 Supreme Court decision upholding the individual health insurance […]
SCOTUSBlog Post-Decision Symposium
SCOTUSBlog has begun posting contributions to its post-decision symposium on NFIB v. Sebelius. Among those with contributions thus far are Laurence Tribe, Alan Morrison Ricahrd Epstein, and our own Randy Barnett. More conspirators will follow (in fact, I just sent mine in — so now I can go read the others!). UPDATE: Here are posts […]
Supreme Court Majority Endorses Activity-Inactivity Distinction
By Ilya Somin on June 28, 2012 11:51 am in Commerce Clause, Federalism, Health Care, Individual Mandate
Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power […]
Larry Solum on the Individual Mandate Decision
Georgetown law professor Larry Solum has an excellent post on the mandate decision, much of which I agree with: Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law. In the extraordinarily unlikely event that there had been a majority opinion authored by one of the […]
Initial Thoughts on the Health Care Ruling
The full set of opinions, with the syllabus, total 193 pages. I’m not sure if that’s a record, but it’s up there. The primary dissent is a joint dissent by all four dissenting justices. This is unusual. Their dissent rejects both the individual mandate and the Medicaid expansion. Because these two provisions are central to […]
Whither the Medicaid Expansion?
Like all of you, I am still waiting to get a copy of the actual opinion. But from the reporting of our friends at SCOTUSBlog, it sure sounds like the Medicaid expansion just became essentially voluntary for the states because the federal government can no longer use the “stick” of cutting off pre-existing funds to […]
The Mandate Upheld as a Tax
We do not yet have the mandate opinion (or at least I don’t). But apparently it was upheld on a 5-4 vote, with Chief Justice John Roberts joining the four liberal justices. Much more surprisingly, it was apparently upheld on the grounds that it is a tax. This was the least likely basis for a […]
Final Thoughts on the Eve of the Individual Mandate Decision
Over the last year, I have written an academic article, several amicus briefs, and countless blog posts and op eds about the individual mandate case. Whether I said anything useful or not is for others to judge. But, as a constitutional federalism scholar and one who had long argued for the need to enforce constraints […]
Win or Lose, My Thanks
On the eve of the historic Supreme Court decision on the constitutionality of the individual insurance mandate, I don’t know what the outcome will be any more than anyone else. I have never made a prediction and won’t start now. From the beginning, I always insisted that the challenge was serious, but also an uphill […]
David Rivkin – Opposing the Mandate Before It Was Cool
The WSJ has republished an op-ed opposing an individual mandate to purchase health insurance by David Rivkin from September 29, 1993. This op-ed was published challenging the constitutional basis of both the Clinton health care plan and the alternative pushed by some Republicans at the time that featured an individual mandate. Here is an excerpt: […]
Law Professors Obsessing Over the Individual Mandate
The Noncuratlex blog recently did a post making fun of constitutional law professors’ obsession with the individual mandate case. It includes shoutouts to the VC, co-blogger Randy Barnett, Laurence Tribe, and Metta World Peace: RENO, NEVADA (Press International), June 25, 2012: The husbands and wives of the nation’s estimated 543 married Constitutional Law professors collectively […]
If Health Reform Law Survives, Litigation Will Continue
Unless the Supreme Court decides to eliminate the Patient Protection and Affordable Care Act in its entirety, Florida v. Sebelius is not the end of health care reform litigation, but only the beginning. Lawsuits are already pending challenging everything from the contraception mandate to the black lung benefits provisions to the structure of the Independent […]
Blogging on the Individual Mandate Decision at SCOTUSblog
This is just to let readers know that, in addition to blogging about the expected individual mandate decision here at the VC, I will also be blogging about it at SCOTUSblog. I will be joining a large group of legal scholars on both sides of the issue there, including co-bloggers Jonathan Adler, Randy Barnett, David […]