This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings: The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate […]
Archive | Individual Mandate
The Bar Review version of NFIB v. Sebelius
By David Kopel on July 10, 2012 2:52 pm in Commerce Clause, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.
Chief Justice Roberts and the window tax
By David Kopel on July 9, 2012 2:27 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Originalism, Taxes, Taxing and Spending Clause
In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.” Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy […]
Making Sense of Chief Justice Roberts’ Opinion
I can’t speak to how the Chief Justice interacted with his colleagues on the Court during the deliberations in NFIB v. Sebelius, or to whether he truly flip-flopped on the mandate or (as Mark Tushnet suggests) he had been the “least persuaded” of the anti-mandate arguments at the initial conference and eventually concluded that it […]
Leaks, Counter-Leaks and the Reason for Roberts’ Switch
Amidst all of the leaks and counter-leaks about the process that led to last week’s individual mandate decision, I find it significant that the pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he […]
A Simple Solution to the Holding vs. Dictum Mess
By Ilya Somin on July 2, 2012 3:47 pm in Commerce Clause, Federalism, Health Care, Individual Mandate
Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself […]
What Did the Court “Hold” About the Commerce Clause and Medicaid?
Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that […]
My Politico Post Assessing the Individual Mandate Decision
By Ilya Somin on July 1, 2012 11:36 pm in Federalism, Health Care, Individual Mandate, Supreme Court
The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here: Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted […]
The Mandate Decision and Public Perception of the Court
Before the Supreme Court’s decision in NFIB v. Sebelius, many predicted the decision would influence public perceptions of the Court and its legitimacy. If a new Rasmussen poll is to believed, the decision has had some such effect already. From the poll summary: A week ago, 36% said the court was doing a good or […]
Barack Obama’s Ironically Prescient Speech Opposing John Roberts’ Nomination to the Supreme Court
By Ilya Somin on June 30, 2012 10:34 pm in Federalism, Health Care, Individual Mandate, Supreme Court
In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient: There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the […]
New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision
By Ilya Somin on June 30, 2012 9:49 pm in Federalism, Health Care, Individual Mandate, Public Opinion
A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin. This is a significantly smaller […]
If the Mandate Is a Tax . . .
I was asked this question last night, and I’m not sure of the answer: If the mandate is a tax, does this mean it could be repealed through the reconciliation process?
Of Silver Linings and Clouds
By Ilya Somin on June 29, 2012 10:07 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s USA Today quotes me on the individual mandate decision as follows: “You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Reasons for Cheer
From James Stewart’s “Common Sense” NYT column: Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on […]