SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in […]
Archive | Necessary and Proper
The Incidental Unconstitutionality of the Individual Mandate
By David Kopel on June 24, 2011 7:44 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Necessary and Proper, Originalism
A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011). Gary Lawson (Boston Univ.) and I […]
The individual mandate is neither “necessary” nor “proper”
By David Kopel on May 11, 2011 4:51 pm in Commerce Clause, Constitutional History, Constitutional Law, Individual Mandate, Necessary and Proper
That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument: The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. […]
My Jurist Article on Why the Individual Health Care Mandate is Unconstitutional
By Ilya Somin on May 4, 2011 11:08 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The Jurist has posted my article on “Why the Individual Health Care Mandate is Unconstitutional.” The format allowed me to lay out the case against all three of the federal government’s rationales for the law more fully than in any previous popular press publication. Here’s an excerpt: Twenty-eight states and several private groups have now […]
The DC District Court Decision Upholding the Constitutionality of the Individual Mandate
By Ilya Somin on February 23, 2011 12:40 am in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because […]
“Health Laws of Every Description”: Obamacare and Original Meaning
By David Kopel on February 4, 2011 6:58 pm in Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, Supreme Court
Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland. Gibbons is certainly a good foundation for advocates of strong […]
Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate
By Ilya Somin on January 31, 2011 8:01 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains […]
Linda Greenhouse on the Individual Mandate Litigation and the “End” of the “Federalism Revolution”
By Ilya Somin on December 17, 2010 4:36 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with […]
Thoughts on Today’s Ruling Striking Down the Individual Health Insurance Mandate
By Ilya Somin on December 13, 2010 11:47 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Here are a few thoughts on today’s federal district court ruling striking down the constitutionality of the Obamacare individual mandate. In my view, the strongest parts of Judge Henry Hudson’s opinion are those where he rejects the federal government’s arguments under the Commerce Clause and the Tax Clause. On the Commerce Clause, federal government lawyers […]
My Richmond Times-Dispatch Op Ed on the Obama Health Care Plan Individual Mandate Litigation
By Ilya Somin on November 8, 2010 2:34 am in Commerce Clause, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxing and Spending Clause
Yesterday, I published an op ed on the state of the individual mandate litigation in the Richmond Times-Dispatch: When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs […]
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 […]
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 […]
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. […]
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 […]
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 […]