I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision. Last week, in poking fun […]
Archive | Individual Mandate
Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions
By Ilya Somin on June 29, 2012 6:31 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power: The obvious […]
Is the individual mandate a “tax” according to the original meaning?
By David Kopel on June 29, 2012 6:30 pm in Constitutional History, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.
NFIB as Marbury
By David Kopel on June 29, 2012 6:25 pm in Constitutional History, Constitutional Law, Federalism, Individual Mandate, Politics, Spending Clause, Supreme Court, Taxing and Spending Clause, Unconstitutional Conditions
My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that […]
National Review Symposium on the Health Care Decisions
For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here: Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also […]
Do the Court’s Commerce Clause and Necessary and Proper Clause Rulings in the Individual Mandate Case Matter?
By Ilya Somin on June 29, 2012 2:44 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant […]
SCOTUSBlog Commentary: “Lose the battle, win the war?”
My contribution to the SCOTUSBlog post-decision symposium elaborates on some of the points I made in my early Bench Memos post on the decision. Here are some excerpts: For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a […]
Where Richard Friedman and I Agree
By Ilya Somin on June 28, 2012 11:35 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Note the close parallels between my statements in this CBS News report and on the mandate decision, and those of University of Michigan law professor Richard Friedman, a well-known liberal legal scholar. It’s almost as if we coordinated our remarks in advance. But in truth I had no idea what he said until I read […]
Assessing My Individual Mandate Predictions
Now that the individual mandate case has been decided, it’s worth taking a look at what I got right and wrong in making predictions about the case in advance. I think the record is a mixed bag. On the plus side, I was right to insist from early on that this was a close case […]
My SCOTUSblog Discussion of the Individual Mandate Decision
By Ilya Somin on June 28, 2012 7:08 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
SCOTUSblog has just posted a detailed analysis of today’s decision that I did for them. It’s much more thorough than anything I have been able to put up elsewhere. Here is an excerpt: Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued […]
The Tax Issue is Not Just a Technicality
By Ilya Somin on June 28, 2012 6:09 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Some, including co-blogger Orin Kerr, have argued that today’s ruling that the individual mandate is a tax rests on a mere technicality. The mandate could have been a tax if only Congress had labeled it as such or structured it slightly differently, and so it makes sense for the Court to assume that it is […]
My Initial Critique of the Individual Mandate Decision
We have been having technical difficulties that make it almost impossible for us to post on this site. I apologize to our readers. However, I have posted an initial critique of the Court’s decision as an op ed for the New York Daily News, here: Today’s 5-4 Supreme Court decision upholding the individual health insurance […]
SCOTUSBlog Post-Decision Symposium
SCOTUSBlog has begun posting contributions to its post-decision symposium on NFIB v. Sebelius. Among those with contributions thus far are Laurence Tribe, Alan Morrison Ricahrd Epstein, and our own Randy Barnett. More conspirators will follow (in fact, I just sent mine in — so now I can go read the others!). UPDATE: Here are posts […]
Supreme Court Majority Endorses Activity-Inactivity Distinction
By Ilya Somin on June 28, 2012 11:51 am in Commerce Clause, Federalism, Health Care, Individual Mandate
Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power […]
Larry Solum on the Individual Mandate Decision
Georgetown law professor Larry Solum has an excellent post on the mandate decision, much of which I agree with: Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law. In the extraordinarily unlikely event that there had been a majority opinion authored by one of the […]