Among the many amicus briefs filed in Supreme Court on the individual mandate case in recent days is this one urging the Court to strike down the mandate, on behalf of a group of supporters of single payer health care. A few weeks ago, I wrote a post criticizing claims (usually made by left-liberal defenders […]
Archive | Individual Mandate
Our Supreme Court Amicus Brief Explaining Why the Individual Mandate is not “Proper”
By Ilya Somin on February 13, 2012 5:19 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
We have just filed an amicus brief in the individual mandate case that I wrote on behalf of the Washington Legal Foundation and a group of prominent constitutional law scholars. The brief is available here. The legal scholar amici include Steve Calabresi, James Ely, Steve Presser, and Volokh Conspiracy bloggers Jonathan Adler and Todd Zywicki, […]
Debating the Individual Mandate
Last week, I was a participant in the 2012 Fordham Debate at the University of Utah’s S.J. Quinney College of Law. The topic was the constitutionality of the minimum coverage requirement (aka the individual mandate) of the Patient Protection and Affordable Care Act, and my interlocutor was David Orentlicher of Indiana University. For those interested, […]
Obamacare in Wonderland
By David Kopel on February 9, 2012 1:46 pm in Commerce Clause, Constitutional Theory, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA […]
Respondents’ Merits Brief Filed in Individual Mandate Case
The private respondents’ brief, with Michael Carvin of Jones Day as counsel of record, and our co-blogger Randy Barnett as co-counsel, is available here. The state respondents’ brief, with Paul Clement counsel of record, is here. When DOJ filed its brief, I noted that “The word ‘Sutton’ appears 14 times, and the word ‘Kavanaugh’ appears […]
Most Americans Want Mandate Struck Down
The Kaiser Family Foundation’s latest poll (toplines here) finds that two-thirds of Americans oppose the individual mandate and a clear majority — 54 percent — want the Supreme Court to invalidate the provision. Based on the poll of 1,206 adults, only 17 percent of Americans would like to see the individual mandate upheld. Another interesting […]
A Response to Randy on “No Commandeering”
Thanks very much to Randy for his post arguing that his “no commandeering of the people” theory could be the argument that addresses my different concerns and create a sound way to strike down the mandate. Like all of Randy’s work, it is engaging, interesting, and important. But of the different arguments Randy offers to […]
How Should the Supreme Court Rule on the Individual Mandate?
Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread: Orin, The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and […]
DOJ Files Supreme Court Brief Defending the Mandate
The brief is here, and it strikes me as significantly better than the briefs that DOJ was filing in the early mandate cases. In terms of atmospherics, it leads with a background of the health care industry to make clear that the industry as a whole is such a significant part of commerce, and it […]
Challenging a False Dichotomy: Socialized Medicine is not the Only Alternative to the Individual Mandate
Some defenders of the Obama health insurance mandate try to scare off opponents by claiming that if the mandate were repealed, the result will be a system of socialized medicine. Presumably, conservatives and libertarians oppose the latter even more than former. Such claims may have led conservative commentator Paul Rahe to argue recently that the […]
Is the Mandate Necessary?
John Goodman in the WSJ: ” There is nothing that can be achieved with a mandate that can’t be better achieved by a carefully designed system of tax subsidies.” Goodman’s argument is strengthened by the fact that the mandate, as structured in the PPACA, would increase coverage, but come nowhere close to achieving universal coverage. […]
5.5 Hours of Oral Argument
Everyone knew the Court would grant cert in the health care cases; the surprising part is that the Court is allowing a whopping 5.5 hours of oral argument for the various issues. Lyle Denniston explains: The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health […]
BREAKING – High Court to Hear Health Care Challenges
By Jonathan H. Adler on November 14, 2011 10:06 am in Health Care, Individual Mandate, Supreme Court
The Supreme Court has granted certiorari in several of the health care cases, granting the Florida’s, NFIB’s and the federal government’s petitions, including consideration of the Tax Injunction Act issue, and granting extended argument time. I suspect SCOTUSBlog will have a full report shortly. NOTE: Here is SCOTUSBlog’s health care litigation page, and here is […]
My Take on the Individual Mandate Litigation
It hasn’t changed since I wrote the following almost a year ago: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate […]
Kavanaugh on the Case for Not Deciding the Constitutionality of the Mandate
Judge Kavanaugh wrote a separate opinion in the DC Circuit’s mandate case that many readers will overlook: It’s based on the tax code, and the opinion itself acknowledges that its analysis is dense and difficult. (“The Tax Code is never a walk in the park. . . . I caution the reader that some of […]