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 […]
Archive | Necessary and Proper
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 […]
Post-argument debate on the constitutionality of Obamacare
By David Kopel on April 18, 2012 12:00 am in Commerce Clause, Constitutional History, Constitutional Law, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.
Larry Lessig on the Politics of the Supreme Court’s Federalism Jurisprudence
By Ilya Somin on April 15, 2012 11:30 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation: The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. […]
My Regblog Analysis of the Individual Mandate Oral Argument
By Ilya Somin on March 31, 2012 1:46 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
I recently published an analysis of the individual mandate oral argument for the University of Pennsylvania Regblog site. It goes through all nine justices and assesses their probable views on the mandate based on both their oral argument performance and their previous records on federalism issues: This week’s oral arguments before the Supreme Court shed […]
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 […]
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 […]
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 […]
A Possible Shift of Emphasis in the Federal Government’s Defense of the Individual Mandate
By Ilya Somin on March 16, 2012 3:46 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
The Hill has a story claiming that the federal government has changed its defense of the individual mandate to emphasize the Necessary and Proper Clause more: The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court. Written briefs in the landmark case increasingly have […]
Briefs by VC Authors in the Individual Mandate Case
By Ilya Somin on February 15, 2012 10:45 am in Federalism, Health Care, Individual Mandate, Necessary and Proper
Regular VC readers might be interested in knowing just how many briefs in the individual mandate case have been authored by your humble Conspirators. In this post, I try to summarize all of them. Not surprisingly, they all urge the Court to strike down the mandate. Pride of place goes to Randy Barnett’s coauthorship of […]
Our Supreme Court Amicus Brief Explaining Why the Individual Mandate is not “Proper”
By Ilya Somin on February 13, 2012 5:19 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
We have just filed an amicus brief in the individual mandate case that I wrote on behalf of the Washington Legal Foundation and a group of prominent constitutional law scholars. The brief is available here. The legal scholar amici include Steve Calabresi, James Ely, Steve Presser, and Volokh Conspiracy bloggers Jonathan Adler and Todd Zywicki, […]
Obamacare in Wonderland
By David Kopel on February 9, 2012 1:46 pm in Commerce Clause, Constitutional Theory, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA […]
Will the Necessary & Proper clause save Obamacare? Not if the Court follows McCulloch v. Maryland
By David Kopel on November 17, 2011 4:33 pm in Constitutional History, Constitutional Law, Health Care, Necessary and Proper
Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online. In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain […]
My RegBlog Post on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 18, 2011 2:35 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject. RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be […]
My Newsday Op Ed on the 11th Circuit Individual Mandate Decision
By Ilya Somin on August 17, 2011 2:29 pm in Commerce Clause, Federalism, Necessary and Proper, Taxing and Spending Clause
Newsday has published an op ed I wrote on the 11th Circuit decision striking down the individual mandate. Because of very tight space constraints, I was unable to cover many of the nuances of the decision. But the op ed does summarize my main thoughts on it: Last week’s Eleventh Circuit Court of Appeals decision […]