The Fourth Circuit has decided its mandate cases. In Virginia v. Sebelius, the court rejects Virginia’s challenge on the grounds that the Commonwealth of Virginia lacks standing to sue. In Liberty University v. Geithner, the court holds that “[b]ecause this suit constitutes a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction […]
Archive | Individual Mandate
47 U.S.C. 223 and the Activity/Inactivity Distinction
The challengers to the constitutionality of the Affordable Care Act often argue that the Affordable Care Act is “unprecedented” — and therefore particularly suspect — because it uses the Commerce Clause to try to regulate inactivity. I’m still not sure of the line between activity and inactivity, so I’m wondering what proponents think of the […]
Identifying Experts’ Political Affiliations and Funding Sources in the Media
Liberal Pittsburgh political blogger “Davyoe” complains that the Pittsburgh Tribune-Review misleadingly portrayed me as a “politically neutral” expert when they interviewed me about the recent individual mandate decision a few days ago. The type of issue he raises is commonly brought up these days: While his description above seems politically neutral (he’s just described as […]
My RegBlog Post on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 18, 2011 2:35 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject. RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be […]
The Individual Mandate, Natural Law, and Lochner: A Scholarly Perspective from Ken Cuccinelli
In the latest issue of the Texas Review of Law & Politics, the Virginia state officials behind the Fourth Circuit challenge to the individual mandate — AG Ken Cuccinelli, SG Duncan Getchell, and Deputy AG Wesley Russell — have written a law review article on the broader jurisprudential context of their lawsuit: Why the Debate […]
The “Unlimited Power” Argument and the Commerce Clause
There has to be some natural limit on how much commentary readers can bear on the individual mandate, but I wanted to respond to one argument that seems to be at the core of the arguments in the mandate debate. As the recent Eleventh Circuit decision and the recent SCOTUSblog symposium make clear, much of […]
More Individual Mandate Commentary Coming Soon
I recognize that I have been somewhat derelict in failing to post additional commentary on the Eleventh Circuit’s important decision striking down the individual mandate. Unfortunately, I was away at a friend’s wedding this weekend, and testifying before the US Commission on Civil Rights on Friday. Plus, it took some time to read the court’s […]
The Eleventh Circuit on the Class of Activities the Mandate Regulates
As regular VC readers know, I believe a central issue in the individual mandate regulation is properly defining the class of activities regulated by the mandate. (See, e.g., here and here.) This is important because this determination is central to the question of whether the mandate represents a permissible exercise of the commerce power. Among […]
Distinguishing Wickard
By Jonathan H. Adler on August 14, 2011 12:59 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Another interesting portion of the Eleventh Circuit’s decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court’s opinion notes, the Supreme Court (in Lopez) characterized Wickard as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity.” As a consequence, the Eleventh Circuit concluded, Wickard “provides […]
The Reasoning of the Eleventh Circuit’s Mandate Opinion
When a court hands down a 207-page majority opinion on a Friday afternoon in August, close scrutiny of its reasoning in the blogosphere generally waits for Monday. But I’ve given a quick read to the Eleventh Circuit’s majority opinion in the mandate case, and I thought it might be helpful to offer a tentative overview […]
The Eleventh Circuit on the “Unprecedented” Mandate
One of the more interesting passages of the Eleventh Circuit’ decision striking down the individual mandate concerns the “unprecedented” nature of the mandate – a subject that has been much discussed on this blog (see, e.g., here). After cataloging some of the uses to which Congress has put the commerce power, the court observes the […]
The Mandate and the “Mainstream”
By Jonathan H. Adler on August 12, 2011 2:34 pm in Academia, Federalism, Health Care, Individual Mandate
Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps […]
11th Circuit Strikes Down Individual Mandate
The 11th Circuit Court of Appeals has just issued a 2-1 ruling striking down the individual mandate in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit […]
BREAKING – Eleventh Circuit Declares Individual Mandate Unconstitutional
The Reuters story is here. Opinion should be available soon on the Eleventh Circuit’s website. UPDATE: The very lengthy opinion is here. The court split 2-1. Judges Hull and Dubina jointly issued the opinion of the court. Judge Marcus dissented. The court concludes the mandate cannot be justified under either the taxing power or commerce […]
What Does the Mandate Regulate?
Today SCOTUSBlog has posted my contribution to its symposium on “The Constitutionality of the Affordable Care Act.” It begins: The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to “regulate commerce . . . among the several states.” This is no […]