GW law professor Orin Kerr argues in a new post on the Volokh Conspiracy that the Individual Mandate is in a sense more “libertarian” than a single-payer, socialized medicine scheme—and suggests that there’s something disingenuous in calling the Individual Mandate “unprecedented” when the reason it’s a newfangled idea is because it’s something of a step [...]
The Fourth Circuit Court of Appeals this week rejected the state of Virginia’s lawsuit challenging the Individual Mandate on the grounds that the state lacked the constitutionally required standing to bring the lawsuit. This is a technical area of constitutional law, and one where the precedents are debatable. But I want to [...]
This morning, the Fourth Circuit Court of Appeals issued a 33 page decision reversing Judge Henry Hudson’s decision that found the Individual Mandate unconstitutional. The Court of Appeals didn’t reach the merits of the case, but held that the state lacked standing to bring the suit. Pacific Legal Foundation filed a brief [...]
Professor Orin Kerr has a post here arguing that opponents of the Individual Mandate are wrong to argue that an Obama Administration victory in the Individual Mandate cases would mean that there are no limits to federal power under the Commerce Clause. Unfortunately, this is at most only half true. According to Kerr, advocates of [...]
Prof. Bell has a blog post objecting to both originalism and living constitutionalism because both interpretive theories lead to what he considers an objectionable outcome: the same word being used to mean different things within the document. This outcome, he contends, “threatens the rule of law” because “an average citizen, using ordinary English, would not [...]
The Supreme Court today agreed to hear a case brought by the Pacific Legal Foundation, to decide whether an Idaho couple, Michael and Chantell Sackett, have the right to judicial review of an EPA “compliance order” that forces them to remove certain improvements on their land or face tens of thousands of dollars in fines [...]
The cover story of the new issue of Regulation magazine is my article on “Certificate of Necessity” (CON) laws, including the law that we’re challenging in the case of Missouri entrepreneur Michael Munie. CON laws are laws that require businesses to prove to a government agency that there’s a “public need” for a new business [...]
In our latest round with Obamacare, Pacific Legal Foundation today filed a friend of the court brief in the Arizona federal district court in Coons v. Geithner, a case that challenges the constitutionality of the Independent Payment Advisory Board, or IPAB. That’s the agency that, under the Obamacare law, will exercise virtually unchecked power to set [...]
The Supreme Court's decision today in Dukes v. Wal-Mart is a major victory for Wal-Mart, for consumers, and for the many women who depend on Wal-Mart for jobs and a livelihood. Pacific Legal Foundation filed a friend of the court brief in the case (and this brief in the Ninth Circuit before that). The case [...]
I’ve just posted a revised version of my paper, Substantive Due Process And The Promise of Lawful Rule: A Conceptual Guide, on SSRN. This article is an attempt to explain the argument in favor of “substantive due process” (a misleading name in itself) less in terms of history than in terms of [...]