Tag Archives: Obamacare

ObamaCare, and Continuing the Conversation

I like to think that some of you enjoy reading this site; to the extent that’s true, please accept my apologies for the prolonged hiatus. I’ve redesigned the site, and re-emphasized small posts, to make site management more sustainable with my new schedule, which includes new responsibilities at the new-ish job, and now a new […]

For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a […]

The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law: And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and […]

That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither […]

ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate […]

ObamaCare: the Value of Narrative in Appellate Advocacy

Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case.  By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s […]

The Healthcare Mandate Contradiction

Virginia’s proposed law to require an invasive vaginal ultrasound before any abortion conducted in the state blissfully lies in ruins, the product of Governor McDonnell’s attempt to run away from the more extreme wing of his party, and back to comfortable territory from whence he can seek a vice presidential nomination. But leave it to […]

The Non-Recusal Tradition

Conservatives and the New York Times may agree on one thing: it’s time for the Supreme Court to get serious about producing a framework where Justices can, and do, regularly recuse themselves from matters in which they’ve had an interest. For my part, I disagree. Though there’s a better case to be made for Thomas’ […]

“Obama vs. the Commerce Clause”: an Answer to Richard Epstein

Unlike your average Tea Party “scholar,” who’s managed to convince himself that child labor laws are somehow an ungodly restriction on individual liberty, Professor Richard Epstein is a profoundly intelligent man. Which is why I take his constitutional arguments against ObamaCare deathly seriously. Epstein isn’t one to fantasize about a world where Lochner v. New […]

Reading the Supreme Court’s Grant in the “ObamaCare” Litigation

SCOTUSblog offers full analysis of the Court’s order (PDF) granting certiorari, to which we add only limited points. First, take into consideration the length of the argument — five and a half hours, broken over several days: The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent […]