My recent Cato Supreme Court Review symposium article on United States v. Comstock is now available on SSRN. The case has important potential implications for the litigation over the constitutionality of the Obama health care plan. Here’s the abstract: Those who argue that the federal government has nearly unlimited authority often cite the Necessary and […]
Archive | Necessary and Proper
The Individual Health Care Mandate and Enumerated Powers – Event Audio
By David Kopel on August 7, 2010 6:07 pm in Constitutional Law, Federalism, Health Care, Necessary and Proper, Taxing and Spending Clause, Tenth Amendment
The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale), Gillian Metzger (Columbia), and me (Denver, VC). The moderator was Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran […]
My Washington Examiner Op Ed on The Recent Ruling in the Virginia Health Care Lawsuit
By Ilya Somin on August 5, 2010 5:16 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause
The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post: Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan. The suit […]
Charles Fried on the Constitutionality of the Health Care Mandate
In this recent op ed, Harvard constitutional law professor Charles Fried argues that the Supreme Court’s recent decision in United States v. Comstock proves that the Obama health care bill’s mandate requiring individuals to buy health insurance is constitutional: A recent 7-2 Supreme Court decision affirming the constitutional power of Congress to allow the indefinite […]
Bad News for Federalism? Some Preliminary Reflections on Comstock
I tend to agree with Eugene that today’s Supreme Court decision in United States v. Comstock is very bad news for constitutional federalism. However, the ultimate import of the decision is hard to gauge because the majority opinion is ambiguous on at least one crucial point: whether Necessary Proper Clause cases are governed exclusively by […]
Is the tax power infinite?
By David Kopel on March 22, 2010 8:05 pm in Commerce Clause, Congress, Constitutional History, Economic LIberties, Federalism, Guns, Health Care, Necessary and Proper, Politics, Supreme Court, Taxes
One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. Jack […]
Comstock and National Security Detentions
By Ilya Somin on January 12, 2010 11:41 pm in Commerce Clause, Federalism, Necessary and Proper, War and Armed Conflict, War on Terror
Co-blogger Ken Anderson asks: Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? […]
Assessing the Comstock Oral Argument
Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” […]
Constitutionality of the “Nebraska Compromise”
By David Kopel on December 23, 2009 2:02 pm in Congress, Constitutional History, Necessary and Proper, Originalism, Supreme Court
The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill […]