The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war. The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I […]
Tag Archives | Constitutionality of the Health Insurance Mandate
Individual Mandates for Foreigners and Indians
By Eugene Kontorovich on April 6, 2012 11:19 am in Commerce Clause, Constitutional Law, Health Care, Individual Mandate, Supreme Court
In my previous post, I argued that the broad interpretation of the Commerce Clause advocated by the government would have the absurd result, when applied to the parallel foreign commerce clause, of allowing Congress to impose mandates on foreigners with no prior contacts with the U.S. Many commentators fought the hypothetical, saying such a law […]
Can Congress Mandate the Japanese to Buy Detroit Cars? – The Commerce Clause and Foreign Commerce
By Eugene Kontorovich on April 4, 2012 3:09 pm in Alien Tort Statute, Federalism, Health Care, Individual Mandate, International Human Rights Law, International Law, Supreme Court
One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard […]
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 […]
Does Congress Have the Authority to Enact a Health Insurance Mandate Using its Power to Tax?
Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. – Jack Balkin), which gives Congress the power to To lay and collect […]
Are there Areas of Consensus Among Constitutional Law Scholars?
Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that […]
The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate
In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal […]