Six additional states just joined the Florida-led lawsuit challenging the constitutionality of the health care bill enacted last year, bringing the total number of states taking part in that suit to 26: The political sea change marked by the November elections on Tuesday pulled six more states into Florida’s lawsuit challenging the national health care […]
Archive | Individual Mandate
More on Boycotts, Inactivity, and the Commerce Clause
At Prawfsblawg, Carlton Larson responds to my critique of his argument that federal regulation of strikes and consumer boycotts are regulations of inactivity similar to the Obamacare individual mandate. Larson doesn’t comment on my discussion of strikes. But he does take issue with my analysis of boycotts, which noted that boycotts qualify as “economic activity” […]
The Health Insurance Industry and the Individual Mandate
At Balkinization, Yale law professor Jack Balkin emphasizes the fact that the health insurance industry supports the Obama health care bill’s individual mandate requiring most Americans to buy health insurance. This is not at all surprising. Is there any industry that wouldn’t support a law requiring people to buy its products? If Congress passed a […]
Activity, Inactivity, and Strikes
By Ilya Somin on January 16, 2011 11:49 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
One of the key arguments in Obamacare individual mandate is that the federal government lacks the power to regulate inactivity, and therefore cannot force people to buy products they don’t want, including health insurance. At Prawfsblawg, law professor Carlton Larson argues that the federal government already regulates inactivity because, in some cases, it forbids strikes: […]
Kansas Seeks to Join Anti-Obamacare Lawsuit, Bringing the Number of States Challenging the Law to 26
By Ilya Somin on January 13, 2011 11:27 pm in Federalism, Health Care, Individual Mandate, Public Opinion, Supreme Court
The state of Kansas recently asked to join the lawsuit challenging the constitutionality of the Obama health care plan filed by 20 state governments and the National Federation of Independent Business. Ohio, Wisconsin, and Wyoming are also seeking to join the multistate lawsuit, while Virginia and Oklahoma have filed separate challenges to the law. That […]
Supreme Court Refuses to Hear Potentially Important Commerce Clause Case
By Ilya Somin on January 11, 2011 10:10 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Yesterday, the Supreme Court refused to hear United States v. Alderman, a potentially important Commerce Clause case [HT: Josh Blackman]. In Alderman, the Ninth Circuit Court of Appeals had upheld the constitutionality of a federal statute that banned the possession of body armor by felons. The Ninth Circuit relied on the Supreme Court’s 1977 decision […]
Our Amicus Brief in the Thomas More Law Center Individual Mandate Case
By Ilya Somin on December 30, 2010 10:21 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
For those who may be interested, I have written an amicus brief in Thomas More Law Center v. Obama, one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate. I wrote the brief on behalf of the Washington Legal Foundation and twelve members of the House of Representatives. It is […]
The Proposed Activity/Inactivity Distinction and the Child Pornography Laws
One of the interesting arguments raised in the litigation over the individual mandate is whether courts should adopt a new activity/inactivity distinction in Commerce Clause doctrine. As I understand the argument in favor of the proposed distinction, the Commerce Clause permits Congress to punish you for doing something that it prohibits but should be construed […]
Linda Greenhouse on the Individual Mandate Litigation and the “End” of the “Federalism Revolution”
By Ilya Somin on December 17, 2010 4:36 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with […]
Thoughts on Justice Scalia’s Wonderful Concurrence in Gonzales v. Raich
Many thanks to Randy Barnett for his thoughtful views below on the relationship between the Necessary and Proper Clause and existing Commerce Clause doctrine. Randy’s argument is more or less the one Justice Scalia makes in his concurring opinion in Gonzales v. Raich: That the “substantial effects” test in Commerce Clause doctrine should be read […]
Thoughts on Today’s Ruling Striking Down the Individual Health Insurance Mandate
By Ilya Somin on December 13, 2010 11:47 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Here are a few thoughts on today’s federal district court ruling striking down the constitutionality of the Obamacare individual mandate. In my view, the strongest parts of Judge Henry Hudson’s opinion are those where he rejects the federal government’s arguments under the Commerce Clause and the Tax Clause. On the Commerce Clause, federal government lawyers […]
New York Times Room for Debate Blog Forum on Today’s Individual Mandate Decision
By Ilya Somin on December 13, 2010 9:50 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Sports and Games, Taxes, Taxing and Spending Clause
The New York Times Room for Debate blog has posted a forum where various scholars weigh in on today’s district court decision striking down the individual mandate. It includes contributions by co-blogger Randy Barnett and myself. My piece briefly discusses the Commerce Clause and Tax Clause aspects of the ruling: Judge Henry Hudson’s decision today […]
To Keep the Latest Ilya-Orin Exchange ….
…from being stuck in an infinite loop of main posts, I’ll respond to Ilya’s latest post in the comment thread to his post immediately below and close comments here.
Limits, “Significant” Limits, and the Commerce Clause
By Ilya Somin on December 3, 2010 2:48 am in Commerce Clause, Federalism, Health Care, Individual Mandate
In his most recent post in our exchange about the individual mandate and the Commerce Clause, Orin distinguishes between a conception under which Congress’ commerce power is “not unlimited” and one where it is “significantly limited.” He argues that the Court’s jurisprudence endorses the former, but not the latter. In my view, however, concluding that […]
“Not Unlimited” Is Not the Same As “Significantly Limited”: A Reply To Ilya
Just a quick reply to Ilya’s response on the scope of the Commerce Clause. In my view, the basic problem with Ilya’s argument is that it mixes up two different claims: (1) Congress does not have unlimited power, and (2) Congress has significantly limited power. The Supreme Court has said (1). But it has not […]