Among this morning’s cert grants was Arkansas Game & Fish Commission v. United States, which asks whether temporary yet repeated flooding can constitute a compensable taking under the Fifth Amendment. I blogged about this case last week here.
Archive | Supreme Court
Was Hamdan Based on a Mistake?
Ben Wittes had this interesting post on the Lawfare blog about research by Haridimos V. Thravalos suggesting the Hamdan plurality got its history wrong concerning whether conspiracy could be tried as a war crime. See also this response from Kevin Jon Heller and Wittes’ rejoinder.
Why Did Legal Elites Underestimate the Case Against the Mandate?
By Jonathan H. Adler on March 30, 2012 11:53 am in Academia, Health Care, Individual Mandate, Supreme Court
Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts […]
A Takings Claim Even Environmentalists Could Love
By Jonathan H. Adler on March 30, 2012 12:58 am in Just Compensation Clause, Property Rights, Supreme Court
Among the cases up for consideration at the Supreme Court’s conference on Friday is Arkansas Game & Fish Commission v. United States, which seeks review of an interesting takings case out of the U.S. Court of Appeals for the Federal Circuit. In short, the case concerns whether the temporary flooding of property can constitute a […]
Citizens United or Kelo?
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 […]
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 […]
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 […]
Passport Dispute Does Not Present “Political Question”
In non-mandate news, the Supreme Court issued two merits opinions today, including Zivotofsky v. Clinton, a challenge to the State Department’s refusal to follow a federal statute directing the federal government to recognize Jerusalem as a part of Israel specifically by allowing American citizens born in Jerusalem to have “Israel” listed as their birthplace. The […]
Court Seeks Reargument of Alien Tort Statute Case
This afternoon the Supreme Court asked for supplemental briefing and announced it would hear additional oral arguments next term in Kiobel v. Royal Dutch Petroleum, in which the Court is considering whether foreign nationals may file suit against corporations for alleged human rights abuses in U.S. courts. Kiobel was just argued last week. Lyle Denniston […]
An Increasingly Unrepresentative Court
Is the Supreme Court becoming detached from the practice of law? A new study by the University of Tennessee’s Benjamin Barton, “An Empirical Study of Supreme Court Justice Pre-Appointment Experience,” suggests it might be. It finds that Supreme Court justices today have a far narrower set of pre-Court experience than in the past. Here is the […]
Clarence Thomas for President Revisited
UCLA law professor Adam Winkler has an op ed arguing that the Republicans should nominate Clarence Thomas for president. Back in 2010, I explained why this is a bad idea, in response to a similar proposal by Kashmir Hill and David Lat. My reasons apply with equal force to Winkler’s argument: I see a few […]
Court Reaffirms Ministerial Exception
By Jonathan H. Adler on January 11, 2012 10:26 am in First Amendment, Religion and the Law, Religious Freedom, Supreme Court
SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions. The Court was unanimous in the judgment. Chief Justice Roberts […]
8-1 Four Times
The Supreme Court issued four opinions in argued cases today. Interestingly, all four cases were decided 8-1 (though some featured concurrences or separate opinions). Justice Ginsburg was the lone dissenter in two of the cases (Minneci v. Pollard and Compu-Credit Corp. v. Greenwood). In the other two cases the lone dissenters were Justice Scalia (Gonzales […]
Possible Supreme Court Case to Watch
From the Wall Street Journal: The Ninth Circuit Court of Appeals is often a source of national amusement, but if one of its recent decisions on the Clean Water Act is allowed to stand, it will wreak havoc on the timber industry and damage other agricultural management as well. Today the Supreme Court is likely […]
A Liberal, PPACA Supporter’s Case for Kagan’s Recusal
Eric Segall, a self-described “liberal constitutional law professor” who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation. Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work […]