There is an interesting set of posts/ongoing discussion among the law professors going on over at Volokh on and around the constitutionality of “Obamacare”.

As with any conversation where the professors do not fully agre–or at least have additional perspectives–they are having a very, very interesting and in-depth convo. To start it off here is a post that speaks to the lack of consensus on this matter with in general. Oh–and per the usual atmosphere at Volokh, the comment section is civil, interesting, and stays largely focused on the merits.

Todd Zywicki starts off another post on Standing and Ripeness with this:

Ilya notes the standing and ripeness issues in the health care suits.  A few weeks ago, Virginia Attorney General Ken Cuccinelli spoke at GMU law school (following a now-established tradition of having newly-minted AG’s speak at the law school).  I asked him exactly these questions about Standing and Ripeness.

Read the rest of that post HERE which looks at the various lawsuits being brought against Obamacare and the mandate in particular by the States and is a follow up to Ilya’s post here, which begins:

This is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the individual mandate and various mandates and grant conditions imposed by the states, one independent suit filed by the state of Virginia, and a little-noticed but potentially important case filed by the Thomas More Law Center on behalf of four individual citizens who object to the individual mandate and refuse to obey it.

The really important issues raised by these suits have to do with federalism, the Commerce Clause, and Congress’ power to tax. However, administration lawyers will probably try to get the lawsuits dismissed on procedural grounds of standing and ripeness.

However, the one I find most interesting, and takes on the broader-scoped question is here by David Kopel:

Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.

Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent.

Read the rest HERE. And head on over to the Volokh Conspiracy and just keep scrolling.

April 4th, 2010 | capitalism, Economics, Healthcare, Judiciary and Law Stuff, Politics, Taxes, The Department of Hope and Change | No comments

Most disturbing about all this, however, is the initial observation made by the WSJ’s editorial writers:  “A single liberal retirement from the Court would thus put Hamdan‘s reasoning in jeopardy.”

How can this be?  How can it be that we’ve reached the point where highly-charged SCOTUS decisions often break along partisan / ideological lines?  (And before you go noting Kennedy’s break, note, too, that Kennedy defected on Kelo, as well, expanding “public good” to mean “whatever a local municipality can justify by arguing that it will bring in more revenue”.  And to be fair, I think Scalia guilty of the same flawed “reasoning” in Raich).

The answer to why this is now so, I think—how “reasoning” become so completely relativistic—is that we no longer have a unified strategy for how to interpret, with the idea of a Living Constitution often acting as a judicial shortcut for failed legislative initiatives, which has the practical effect of codifying a strained (and logically problematic) idea of interpretation and how it is made to work, allowing its proponents to move back and forth between readings that cite legislative intent and readings that deny the importance of that intent in new and different “contexts.”

Be sure to read the whole thing

July 5th, 2006 | Judiciary and Law Stuff, Politics | No comments