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All Roads Lead to Justice Kennedy
This seems like a really big deal to me: Justice Anthony M. Kennedy added that individuals had a role to play in cases that at first blush seem to implicate only a clash between federal and state...
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The Unbuttered Slide to Broccoli Mandates
When Austin Frakt comes to a slippery slope, he levels it: [T]he slippery slope has relevance only in instances for which it isn’t necessary. The government isn’t holding back from mandating broccoli...
View ArticleLegislative History on the Tax Issue, A Compilation of Selected Sources
In my last post I discussed the role of legislative history in the legal argument over whether the penalty for failure to comply with the ACA’s individual mandate is a tax. I’ve been doing some...
View ArticleThe Not-So-Long Road to October
Federal Courts of Appeals have begun scheduling hearings on the various ACA lawsuits, and the schedules they’re adopting are pretty aggressive. Brad Joondeph writes that the Supreme Court is likely to...
View ArticleRoberts’ Rule?
Brad Joondeph has an excellent article on the legal challenges to the ACA (pdf) in Publius: The Journal of Federalism. Perhaps the most interesting tidbit is that Joondeph thinks the Supreme Court’s...
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How the Justices Will Decide
In his new article in the journal Publius, Brad Joondeph discusses three factors that will go into the Court’s ultimate decision (pdf) on the constitutional challenges to the Affordable Care Act. The...
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Was the Fourth Circuit Baffled by the Inactivity Argument?
The Fourth Circuit Court of Appeals heard oral arguments on the constitutional challenges to the ACA in Liberty University v. Geithner and Virginia v. Sebelius on Tuesday. Tim Jost has an authoritative...
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A Surprising Concession on Severability
Brad Joondeph comments on a surprising development in the United States’ reply brief (pdf) before the Eleventh Circuit Court of Appeals: [T]he United States is now conceding that the ACA’s...
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Is the Mandate Penalty a Penalty?
Arguments for the constitutionality of the individual mandate as an exercise of the taxing power often start by noting that the penalty is reported on income tax returns, calculated as a percentage of...
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Constitutional Challenges to ACA Medicaid Reforms Would Be a Lot Stronger If...
At oral arguments over the health reform law last week, the Eleventh Circuit panel showed a surprising amount of interest in the other constitutional challenge to the Affordable Care Act (ACA)—the...
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