In my contribution to the NRO symposium Ilya mentions below I address the claims made by liberal commentators that the Supreme Court would sacrifice its own credibility were it to strike down the individual mandate. Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have […]
Archive | Individual Mandate
The Inconsistency Between the Constitutional Arguments for the Mandate and Medicaid in the ACA
By Eugene Kontorovich on March 29, 2012 6:20 pm in Constitutional Law, Economy, Federalism, Health Care, Individual Mandate, Supreme Court
Now that Eugene has given me the electronic keys to this Conspiracy, I could not resist getting involved in the now-legendary discussion of the ACA… There is a serious inconsistency between the government’s arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial […]
National Review Symposium on the ACA Oral Arguments
National Review has posted a symposium on this week’s ACA oral arguments, with contributions by various conservative and libertarian pundits, policy experts, and legal scholars. The symposium includes short assessments of the argument by co-blogger Jonathan Adler and myself. Here’s an excerpt from my piece: This week’s Supreme Court oral argument did not go well […]
Nearing the end of the search for the non-existent limiting principles
By David Kopel on March 29, 2012 4:47 am in Commerce Clause, Constitutional Law, Federalism, Fifth Amendment, Growth of Government, Guns, Health Care, Individual Mandate, Necessary and Proper, New Class, Regulation, Supreme Court, Taxes, Uncategorized
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over […]
Crediting/Blaming the VC for the Possible Defeat of the Individual Mandate
By Ilya Somin on March 28, 2012 6:03 pm in Federalism, Health Care, Individual Mandate, Public Opinion
Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.: Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At […]
Lithwick’s Lament
Shorter Dalhia Lithwick: The mandate must be constitutional because it’s compassionate to care about others. Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other. Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the […]
Four Thoughts on the Individual Mandate Argument
I’ve now made it through the full transcript of this morning’s argument. Here are four thoughts: 1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and […]
More Bad News for the Federal Government’s Argument that the Individual Mandate is a Tax
By Ilya Somin on March 27, 2012 11:42 pm in Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Yesterday, I pointed out that even many of the liberal Supreme Court justices were skeptical of arguments that the individual mandate qualifies as a tax under the Anti-Injunction Act, and suggested that this was not a good sign for the federal government’s claim that the mandate is a tax authorized by the Tax Clause of […]
Thoughts on the Individual Mandate Oral Argument
By Ilya Somin on March 27, 2012 7:15 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other […]
Justices Skeptical of Claims that the Individual Mandate is a Tax
By Ilya Somin on March 26, 2012 1:16 pm in Federalism, Health Care, Individual Mandate, Taxes, Taxing and Spending Clause
Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is […]
My CNN Column on the Individual Mandate Case
By Ilya Somin on March 26, 2012 9:44 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxes, Taxing and Spending Clause
The CNN website has just posted a column I wrote on the individual mandate case. Here’s an excerpt: This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan’s requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is […]
Guns, Broccoli and the Individual Mandate – Thoughts on the Eve of Argument
Is Department of Health and Human Services v. Florida a replay of United States v. Lopez? I suggested as much in an October 2010 post, in which I wrote: n both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported […]
My New York Times Room for Debate Forum Piece on the Individual Mandate Case
The New York Times Room for Debate Forum has recently posted a set of short op eds by experts on both sides of the upcoming health care cases. My own contribution to the Forum is here. Here’s an excerpt: The individual health insurance mandate case raises momentous issues about the limits of federal power. As […]
Shortcomings of the “Everyone Uses Health Care” Rationale for the Individual Mandate
The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case. The most popular one, […]
False Arguments in Favor of the Mandate
There are serious arguments in support of the constitutionality of the individual mandate (just as there are serious arguments against it). There are also quite a few bad arguments, and quite a few that rest on patently false premises. A common example of the latter is that the mandate does not require anyone to engage […]