Like my co-conspirators, I believe the Necessary & Proper Clause provides the strongest basis for the constitutionality of the individual mandate. I”m inclined to agree with Ilya nad Randy, rather than Orin, but I believe it’s a close call. The constitutional argument, as has been rehearsed in this space before, is that that mandate is […]
Archive | Individual Mandate
The Florida District Court Decision Rejecting the Federal Government’s Motion to Dismiss the Case Against the Individual Mandate
By Ilya Somin on October 14, 2010 5:42 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxes, Taxing and Spending Clause
There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate brought by 20 states and the National Federation of Independent Business. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts […]
Kopel comment on states’ victory on health control lawsuit.
By David Kopel on October 14, 2010 5:06 pm in Commerce Clause, Congress, Constitutional Law, Health Care, Individual Mandate, Spending Clause, Standing, Taxes, Taxing and Spending Clause, Tenth Amendment
My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum. The court entirely rejected the administration’s claim that the penalty for disobeying […]
Michigan District Court Upholds Individual Mandate Against Challenge by the Thomas More Law Center
By Ilya Somin on October 7, 2010 6:19 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Michigan federal district Judge George Caram Steeh just issued an opinion upholding the Obama health care plan’s individual mandate against a challenge by the conservative Thomas More Law Center and several individual plaintiffs who refuse to purchase health insurance by 2014 as the mandate requires. This is the first opinion issued on the merits in […]
That Which is “Necessary” Isn’t Necessarily Proper
By Ilya Somin on October 6, 2010 7:41 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
In his most recent post in our debate over the Necessary and Proper Clause, Orin argues that Supreme Court precedent has resolved the issue of what counts as “proper” as well as what is “necessary.” That, however, simply is not so. None of the cases Orin cites say anything about the meaning of “proper.” They […]
If It’s Necessary and Proper, Then It’s Proper: A Reply to Ilya
I’ve enjoyed my exchange with Ilya on the health care mandate, although I find myself in the exchange becoming increasingly of the view that this isn’t a difficult issue under current Supreme Court caselaw. Here’s one more round to try to sharpen the debate between us. The crux of the disagreement between Ilya and I […]
More on the Necessary and Proper Clause and the Health Care Mandate
By Ilya Somin on October 6, 2010 2:22 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
Orin has replied to my post explaining why current Supreme Court doctrine doesn’t support the constitutionality of the Obamacare individual mandate under the Necessary and Proper Clause. He makes three points that I will briefly answer. First, Orin suggests that current Supreme Court doctrine gives a broad interpretation of the word “proper” in the Clause. […]
More on the Constitutionality of the Individual Mandate
I appreciate Ilya’s reply to my post on the constitutionality of the individual mandate. Three points in response: 1) Ilya suggests that the Supreme Court has never answered what makes legislation “proper,” and he suggests a first-principles argument for why there may be limits on what is “proper” that would permit the Supreme Court to […]
Necessary and Proper Clause Doctrine and the Individual Mandate
By Ilya Somin on October 6, 2010 4:25 am in Federalism, Health Care, Individual Mandate, Necessary and Proper
In a recent post, co-blogger Orin Kerr outlines what has become the standard argument that the Obama health care plan’s individual mandate is authorized by the Necessary and Proper Clause. The claim is that the goal of the legislation is to regulate commerce in health insurance (which, under current doctrine, is a permissible end under […]
Gonzales v. Raich and the Individual Mandate
By Ilya Somin on October 5, 2010 1:10 am in Commerce Clause, Federalism, Health Care, Individual Mandate
The Supreme Court’s 2005 decision in Gonzales v. Raich ruled that Congress’ power to regulate interstate commerce gives it the power to ban possession of medical marijuana that had never crossed state lines or been sold in any market anywhere. It was easily the broadest-ever Supreme Court interpretation of the Commerce Clause. When I first […]
The ACA Litigation Blog
Those of our readers interested in the litigation over the Obama health care plan should check out University of Santa Clara lawprof Brad Joondeph’s extremely helpful ACA Litigation blog. Joondeph has performed a valuable public service by making all the many briefs, documents, and motions in the Florida and Virginia health care cases available in […]
Our Amicus Brief in the Virginia Case Challenging the Constitutionality of the Obama Health Care Plan
By Ilya Somin on October 4, 2010 4:07 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause
Today, we filed an amicus brief in Virginia v. Sebelius, one of the cases challenging the constitutionality of the Obama health care plan’s individual mandate, which requires nearly all Americans to purchase health insurance by 2014 or pay a fine. I wrote the brief on behalf of the Washington Legal Foundation, a leading pro-free market […]
Taking Stock of Comstock
By Ilya Somin on October 1, 2010 2:56 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
My recent Cato Supreme Court Review symposium article on United States v. Comstock is now available on SSRN. The case has important potential implications for the litigation over the constitutionality of the Obama health care plan. Here’s the abstract: Those who argue that the federal government has nearly unlimited authority often cite the Necessary and […]
My Washington Examiner Op Ed on The Recent Ruling in the Virginia Health Care Lawsuit
By Ilya Somin on August 5, 2010 5:16 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause
The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post: Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan. The suit […]
Thoughts on the Federal District Court Ruling Refusing to Dismiss the Virginia Health Care Lawsuit
By Ilya Somin on August 2, 2010 1:09 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Spending Clause
Federal District Judge Henry Hudson’s opinion refusing to dismiss Virginia’s lawsuit challenging the constitutionality of the Obama health care plan has several interesting aspects. The suit focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by […]