In his response to my post on why going without health insurance doesn’t qualify as an “activity” that Congress can regulate under the Commerce Clause, Orin Kerr claims that my reasoning “begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of ‘activity’ in order […]
Archive | Individual Mandate
How Do We Know What is An “Activity” for Commerce Clause Purposes?
I appreciate Ilya’s post below on the meaning of “activity” in Commerce Clause jurisprudence, and I wanted to add two brief observations: 1) If I understand Ilya’s argument, he begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of “activity” in order to make […]
Why Going Without Health Insurance Isn’t an “Activity”
Current US Supreme Court Commerce Clause precedent holds that Congress can regulate almost any “economic activity” and most “noneconomic activities” as well. The Obamacare individual mandate, however, seems to regulate inactivity – notpurchasing a product. Both Judge Steeh in the Thomas More Law Center decision and Judge Moon in the recent Liberty University ruling argue […]
District Court Upholds Individual Mandate Against Challenge Filed by Liberty University
By Ilya Somin on December 1, 2010 10:45 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Spending Clause, Taxes, Taxing and Spending Clause
Yesterday, federal district Judge Norman Moon of the Western District of Virginia upheld the Obamacare individual mandate against a constitutional challenged filed by Liberty University and several private plaintiffs. For the most part, Judge Moon’s reasoning closely follows that of Michigan district Judge George Caram Steeh in the recent Thomas More Law Center decision. Both […]
Upcoming Speech at Duke Law School on the Individual Mandate Litigation
By Ilya Somin on November 14, 2010 3:40 pm in Federalism, Federalist Society, Health Care, Individual Mandate
This Monday at noon, I will be giving a talk at Duke Law School on the Obamacare individual mandate litigation, which I recently wrote about here. The speech is sponsored by the Duke Federalist Society.
Upcoming Talk at University of Florida Law School on the Individual Mandate Litigation
This Wednesday at noon, I will be giving at talk at the University of Florida Law School on the Obamacare individual mandate litigation, which I recently wrote about here. The speech is sponsored by the UF Federalist Society and Health Law Society.
My Richmond Times-Dispatch Op Ed on the Obama Health Care Plan Individual Mandate Litigation
By Ilya Somin on November 8, 2010 2:34 am in Commerce Clause, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxing and Spending Clause
Yesterday, I published an op ed on the state of the individual mandate litigation in the Richmond Times-Dispatch: When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs […]
California District Court Dismisses Anti-Mandate Lawsuit for Lack of Standing
I should have gotten around to this when it happened. But it’s still worth nothing that a federal district court in California dismissed a lawsuit challenging the Obama health care plan’s individual mandate on the grounds that the plaintiffs lacked standing. The case was brought by former California state legislator Steve Baldwin and the Pacific […]
More on the Proposed Act/Omission Distinction — And What Does It Mean To “Mandate” an Act?
I appreciate Jonathan Adler’s response on the nature of Randy Barnett’s proposed act/omission distinction on the scope of federal power. Given that this is a proposed distinction, not one presently recognized in the caselaw, my real interest at this stage is just getting a sense of how such a distinction is supposed to work — […]
An Act/Omission Limitation on Federal Power Over States?
Orin is concerned about the ability of the Supreme court to draw a line between the federal government’s authority to regulate or prohibit conduct, on the one hand, and its ability to mandate conduct on the other. Drawing a line of this sort may be difficult, but it is hardly unprecedented. Consider some of the […]
Adding an “Act” to Overcome the Proposed Act/Omission Limitation on Federal Power
I very much appreciate Randy’s response to my latest post; It’s really terrific to have this discussion with him. While I have him on the line, I wanted to push Randy a bit on the act/omission distinction. If the constitutional line is between acts and omissions, as Randy suggests, then I gather Randy would agree […]
McDonald and The Mandate: A Response to Randy
It is always a pleasure when Randy responds to one of my posts that touches on his areas of expertise. Here are a few thoughts in reply to Randy: 1) I fear there is a misunderstanding as to what comparison I made in my post to which Randy responds. In my post, I compared the […]
One Perspective on the Scope of Federal Power “In the Commercial Sphere”
I recently was reminded of this quote about Commerce Clause doctrine and I thought I would put it out there for comment in light of the recent debates on the constitutionality of the individual mandate: [T]he Court as an institution and the legal system as a whole have an immense stake in the stability of […]
The Individual Mandate Debate as a Replay of United States v. Lopez
[With apologies to Orin.] The more I participate in discussions on the constitutionality of the individual mandate, the more it feels to me like a replay of the debate over the limits of federal commerce clause power prior to the Supreme Court’s decision in United States v. Lopez. In both cases, the issue is whether […]
The Individual Mandate Debate as a Replay of McDonald v. City of Chicago
The more I participate in discussions on the constitutionality of the indivdiual mandate, the more it feels to me like a replay of last year’s discussions on the Privileges or Immunities Clause on the road to McDonald v. City of Chicago. In both cases, the issue is whether the Supreme Court will adopt limitations on […]