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.

Read about his bold moves HERE.

For years, the site of the property condemned in the controversial Kelo v. City of New London case has stood empty. Now however, there are recent reports that the city of New London has found a developer interested in building townhouses on the site (see here andhere) [HT: my RA Eva Choi, and Michael O’Malley of the Yale University Press].

Several previous plans to develop on the condemned property have gone under. In November, the Pfizer Corporation, whose lobbying helped instigate the initial takings, announced the planned closing of its headquarters in New London. That step further reduced the likelihood that anything will be built in the area. It remains to be soon whether the townhouse development will work out better than these previous efforts. At present, it is not clear how much the new project will cost taxpayers, and a news report indicates that “[c]onstruction on the project will not occur any time soon.”

Even if the townhouses are eventually built, it is unlikely that they will generate enough development to offset the value of the numerous homes and businesses wiped out by the condemnations, the opportunity cost of having the area lie empty for years, and the over $80 million in public funds already expended on the project.

Ironically, much of the condemned area was a lower-middle class residential neighborhood before the takings, and New London’s current plan is to use the land for roughly the same purpose. The City could have “achieved” this result at far lower cost simply by leaving the neighborhood alone in the first place. Taken as a whole, the Kelo story exemplifies the ways in which “economic development” takings not only victimize property owners, but also often destroy more development than they create (see also my more extended discussion inthis article, which cites figures for the costs of the Kelo takings).

Ilya has added an update worth checking out. Me linky. You clicky.

Lobbyists for healthcare, energy and financial interests had a banner year in 2009, with the average payout for each reaching as high as $177,000.

Despite his push to rein in special interests, President Barack Obama sparked a boom on K Street with major new proposals on healthcare, climate change and financial policies.

“The magnitude of the work done in the three fields is just huge,” said Michael Levy, of Brownstein Hyatt Farber Schreck’s Washington office.

New lobbying restrictions led to a decline in the number of registered lobbyists working for clients in each of the three industries, according to data from the nonpartisan Center for Responsive Politics.

The combination of more work for fewer lobbyists meant record payouts per lobbyist.

Lobbyists working in each of the three industries took home the most on average that they have in a decade, even when adjusted for inflation, according to analysis of the data by The Hill.

Many lobbyists work for clients in several policy areas, so the average payout by industry doesn’t necessarily equal the average overall compensation those lobbyists received. Spending was up in all three broad areas of healthcare, energy and financial-services reforms.

Healthcare clients spent the most overall on lobbying at $544 million, which was roughly $60 million more than in 2008. But there were more lobbyists (3,405) on healthcare issues than on either energy (2,311) or financial legislation (2,654).

Lobbyists earned an average of $160,000 for healthcare-related work.

Energy clients paid $409 million for an average of $177,000 per lobbyist. Lobbyists for energy clients beat out financial lobbyists for top billing.

That, combined with this story have me just shaking my head at all those hopey changey types :::

Barack Obama has long decried the corrupting influence of money in politics. As a candidate, he ran against lobbyists and the pay-for-play culture of Washington. As president, he has continued to hammer the theme, most recently in his impassioned attacks on the Supreme Court’s ruling inCitizens United v Federal Election Commission.

Given this, it’s a little surprising to learn that Obama has not only embraced the sordid money-driven culture of DC, but actually outdone his predecessors. An analysis by the American Foreign Service Association, for example, found that Obama has stuffed the diplomatic corps with more political appointees (i.e., cronies) than any president in the past 40 years. Only a year into the administration, close of half of the president’s biggest donors already have federal jobs.

But I already blogged about that.

You remember that “Constitution” thingy? You know, the anachronism from a bygone era, which Democrat politicians and judges take an oath to uphold and then promptly forget about — or claim that it’s a “living and breathing” document?

To show you how far left the Democrat Party has moved over the last couple of decades, a serious debate appears to be raging within the party over the role of the United States Senate. Not just procedures like the filibuster, mind you, but whether there actually should be a Senate at all.

Go read the whole thing [including an excellent brief history lesson on why we have checks and balances].

I am reminded once again how few people realize that we do not live in a democracy; we live in a consitutional republic. Given how the populace at large thinks, while I am certainly not in love with how our republic is functioning, moving toward more “democracy” would obviously be worse.

Mob rule.

Why do I get the feeling that precious few have read the Federalist Papers?

Quotable bits :::

Unions vs. Liberalism, Part XXIIII: If you are a liberal who believes in public education, do not let the teachers’ unions do to your school system what the United Teachers Los Angeles (UTLA) has done to the L.A. Unified School District–make it so hard to fire a bad teacher that most school principals don’t even try. According to an L.A. Weeklyinvestigation, the school district itself seems to have given up:

In the past decade, LAUSD officials spent $3.5 million trying to fire just seven of the district’s 33,000 teachers for poor classroom performance — andonly four were fired, during legal struggles that wore on, on average, for five years each. Two of the three others were paid large settlements, and one was reinstated. The average cost of each battle is $500,000.

[W]e also discovered that 32 underperforming teachers were initially recommended for firing, but then secretly paid $50,000 by the district, on average, to leave without a fight. Moreover, 66 unnamed teachers are being continually recycled through a costly mentoring and retraining program but failing to improve, and another 400 anonymous teachers have been ordered to attend the retraining. [E.A.]

That’s less than one attempted firing a year. Why? Mainly because firings–and the bad performance evaluations that precede them–are almost invariably contested by the union. Firings must go through an expensive and protracted hearing and appeals process: “Documents show only one instance in the past 10 years in which an LAUSD teacher accepted his firing and left without a fight or big payment.” [E.A.]

Go read the rest on your own.

Speaking of Unions and other insane use of public funds that fly in the face of common sense. This is a bit old now, but in case you missed it ::: Willie Brown can talk common sense ‘cuz he is no longer in office.