I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say. Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit’s conclusion that […]
Archive | Individual Mandate
Judge Silberman on the Individual Mandate
I thought readers might be interested in the key passages from the DC Circuit’s majority opinion, authored by Judge Silberman, upholding the individual mandate under the Commerce Clause: The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held […]
The Broccoli Slippery Slope vs. the Epidemic Slippery Slope
By Ilya Somin on October 31, 2011 6:41 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
At Balkinization, Gerard Magliocca raises a possible slippery slope argument against striking down the individual health insurance mandate (this argument was, I think, first raised in an article by Mark Hall): The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. […]
What Should the Supreme Court do with the Obamacare Case?
By David Kopel on October 3, 2011 1:07 pm in Commerce Clause, Constitutional Law, Health Care, Individual Mandate
That’s the question posed today over at Scotusblog. It’s the premiere of the Scotusblog Community, which aims to encourage discussions by Scotusblog readers. To start the ball rolling, Scotusblog solicited short comments (up to 2 paragraphs) from Erwin Chemerinsky, Dawn Johnsen, Ilya Shapiro, Stephen Presser, Adam Winkler, and me, among others. My answer to what […]
Three Reasons DoJ Passed on En Banc Review of the Mandate Decision
The Washington Post‘s Sarah Kliff offers three potential reasons the Department of Justice opted against seeking en banc review of the U.S. Court of Appeals for the Eleventh Circuit’s decision holding the individual mandate unconstitutional. The Obama administration will definitely handle the case. The review might not have been granted— or gone against the administration. […]
How Much Does the Mandate Case Matter for Constitutional Law?
Michael Dorf has an interesting Verdict column arguing that the mandate case is very important politically, but much less important than you might think as a matter of constitutional law.
Obama Administration Decides Not to Petition for Rehearing in Eleventh Circuit Mandate Case
So reports the ACA Litigation blog. I’m quite surprised, as normally DOJ would delay a case like this as long as possible– and try to eliminate the split — with a petition for rehearing. So it looks like it’s on to the Supreme Court, with a DOJ-filed petition for certiorari coming soon. That would make […]
Certiorari or En Banc for Individual Mandate Appeal?
Politico reports that the Department of Justice has until Monday to decide whether to file a petition for en banc review in Florida v. HHS, the successful challenge to the constitutionality of the individual mandate in the U.S. Court of Appeals for the Eleventh Circuit. If the Department of Justice does file such a petition, […]
Single-Payer, the Individual Mandate, Liberty and Accountability — a Surreply to Orin
Would defeating the individual mandate today lead to something worse tomorrow? I don’t know. I don’t have a crystal ball, but neither does Orin. We can’t answer this question, but we can identify reasons why mandate-style approaches to health care reform can increase the threat to individual liberty and undermine democratic accountability. My point below […]
Should Libertarians Prefer the Single-Payer Model to the Individual Mandate? A Response to Adler and Burrus
I appreciate the responses of Jonathan Adler and Trevor Burrus to my post questioning whether the mandate challenge would further libertarian ends. To recap, in my post I agreed that in the short run, given prevailing political winds, the mandate challenge would further libertarian preferences. But I questioned whether that would be true in the […]
Is the Mandate More “Market-Oriented” than Available Alternatives (and Does It Matter?) — A Response to Orin
Orin Kerr’s post below suggesting that the individual mandate is less of a threat to liberty than some of the available alternatives has drawn quite a response. See, for instance, these posts by Timothy Sandefur at PLF and Trevor Burrus at Cato@Liberty. They make some important points, but I wanted to add a few of […]
Is the Individual Mandate “Unprecedented” Because It Is More Statist Than Previous Laws, or Because It Is More Market-Oriented?
One of the common claims made by opponents of the individual mandate is that it is “unprecedented” — and therefore constitutionally suspect — for Congress to use the Commerce Clause power to mandate the purchase of a product. Never in United States history has Congress interfered so much with personal freedom so as to mandate […]
Federal District Court in Pennsylvania Strikes Down Individual Mandate
By Ilya Somin on September 13, 2011 3:10 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
Federal district Judge Christopher Connor of the Middle District of Pennsylvania just issued an opinion striking down Obama health care plan individual mandate. It is available here. Timothy Sandefur has some helpful commentary on the decision here. As Sandefur mentions, Connor’s opinion is unusual for striking down the mandate despite rejecting the view that upholding […]
Could the Individual Mandate Really Be This Unpopular?
This morning the Associated Press and National Constitution Center released their latest survey on American attitudes toward governmental institutions and constitutional questions. Among other things, the poll shows that Americans appear to be increasingly comfortable with giving the President greater authority to address economic concerns. One of the results that caught my eye was a […]
Fourth Circuit Dismisses Two Challenges to the Individual Mandate on Jurisdictional Grounds
By Ilya Somin on September 9, 2011 9:10 am in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
On Thursday, the Fourth Circuit Court of Appeals issued two decisions dismissing challenges to the Obama health care plan’s individual mandate on jurisdictional grounds. All three judges on the panel were Democratic appointees, including two chosen by President ObamaNeither ruling reached the merits of the question of whether the individual mandate is constitutional. Virginia v. […]