SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in […]
Archive | Individual Mandate
Judge Graham’s Deft Analysis of Economic Activity
In my post yesterday, I did not discuss dissenting Judge Graham’s intriguing treatment of the “class of activities” being regulated by Congress. In it, he makes three moves. First, he rejects the utility of the activity-inactivity line as a constitutional distinction: Much has been made in this litigation of the distinction between activity and inactivity. […]
My Jurist Op Ed on the Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on July 1, 2011 3:58 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxing and Spending Clause
The Jurist has just published an op ed I wrote criticizing the recent Sixth Circuit decision upholding the individual mandate: This week, the US Court of Appeals for the Sixth Circuit ruled that the individual mandate of federal health care reform is constitutional. This is undeniably a setback for mandate opponents…. Before this decision, judges […]
The Presumption of Constitutionality Revisited
In his response to my post on the mandate cases and the presumption of constitutionality, Orin Kerr argues that the presumption applies to all cases where courts consider the constitutionality of congressional legislation. Orin recognizes that the Supreme Court majority in fact fails to even mention the presumption in many controversial cases where it strikes […]
The “Presumption of Constitutionality” and the Individual Mandate Cases
In a recent post, co-blogger Orin Kerr argues that the “presumption of constitutionality” accorded to congressional legislation weighs in favor of the federal government in the individual mandate cases. In my view, courts should not grant either congressional or state legislation a presumption of constitutionality. Such deference is especially inappropriate in situations where the the […]
Re: Facial vs. As-Applied Challenges to the Individual Mandate
Ilya’s post below addresses an important issue in commerce clause litigation: Whether commerce clause challenges should be treated as facial or as-applied challenges and, if the former, how such challenges should be addressed. I largely agree with Ilya’s post. Indeed, if anything, Ilya understates the point, particularly with regard to United States v. Lopez. Further, […]
Judge Sutton on Facial vs. As-Applied Challenges to the Individual Mandate
In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” […]
Today’s Sixth Circuit Decision Upholding the Individual Mandate
By Ilya Somin on June 29, 2011 6:52 pm in Commerce Clause, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s 2-1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold […]
Judge Sutton on the Individual Mandate
Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. […]
The Incidental Unconstitutionality of the Individual Mandate
By David Kopel on June 24, 2011 7:44 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Necessary and Proper, Originalism
A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011). Gary Lawson (Boston Univ.) and I […]
Republican presidential candidates pledge to appoint judges to overturn the unconstitutional anti-abortion law they will sign
By David Kopel on June 18, 2011 4:42 pm in Abortion, Constitutional History, Constitutional Law, Federalism, Fourteenth Amendment, Health Care, Individual Mandate, Judicial Nominations, Originalism, Supreme Court
At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.” Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are: FIRST, […]
Hard Cases Make Bad Law – Activity/Inactivity Edition
I appreciate Orin’s thoughtful post below, responding to my post form last night on the activity/inactivity distinction. I think it helps make my point that the basic distinction between activity and inactivity is readily understandable. What Orin points out, however, is that the precise contours of this distinction are a bit fuzzy and may be […]
The individual mandate is neither “necessary” nor “proper”
By David Kopel on May 11, 2011 4:51 pm in Commerce Clause, Constitutional History, Constitutional Law, Individual Mandate, Necessary and Proper
That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument: The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. […]
Baffled that Anyone Is Baffled by the Activity/Inactivity Distinction
The Fourth Circuit panel may have been baffled by the activity/inactivity distinction, as Orin reports, but it’s really not a new idea. The distinction between activity and inactivity is not an alien concept to the law. We see this distinction where the law recognizes the difference between acts of commission and acts of omission, for […]
Sixth Circuit Panel for Health Care Litigation
By Jonathan H. Adler on May 11, 2011 10:33 am in Federalism, Health Care, Individual Mandate, Sixth Circuit
A notice on the website for the U.S. Court of Appeals for the Sixth Circuit announces that the three-judge panel to hear the appeal in Thomas More Law Center v. Obama, another challenge to the constitutionality of the individual mandate, will consist of Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and District Court […]