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commerce clause

Why the Courts Must Presume that Economic Legislation is Constitutional

April 6, 2012

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess [...]

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Attorney General Holder's Response to Judge Jerry Smith on the Separation of Powers

April 6, 2012

The Attorney General's letter is here. More below.

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Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

April 5, 2012

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation [...]

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On Liberty: Kennedy and Verrilli in Oral Argument in Health Care Case

March 29, 2012

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

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2011-2012 Supreme Court Term: Decision in Coleman v. Court of Appeals of Maryland

March 21, 2012

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

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2011-2012 Supreme Court Term: Coleman v. Court of Appeals of Maryland, No. 10-1016 (11th Amendment State Sovereign Immunity)

February 20, 2012

This is another of those wacky 11th Amendment cases that the Supreme Court has been entertaining lately.

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Health Care Financing Reform (136): The Constitutional Issues

October 19, 2011

This post summarizes the constitutional issues that the Supreme Court will have to determine in addressing the constitutionality of the individual mandate contained in the 2010 federal health care law.

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Health Care Financing Reform (134): Judge Graham's Opinion in Obama v. Thomas More Law Center

June 30, 2011

Here is a summary of Judge Graham's dissenting opinion from the decision of the Sixth Circuit in Obama v. Thomas More Law Center.  Judge Graham would strike down the individual mandate of the PPACA as unconstitutional.

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Health Care Financing Reform (133): Judge Sutton's Separate Concurring Opinion in Obama v. Thomas More Law Center

June 30, 2011

Judge Jeffrey Sutton concurred in the judgment of the Sixth Circuit that the Patient Protection and Affordable Care Act is constitutional on its face.  However, he did not join Judge Martin's opinion upholding the law, and he left open the door to future as-applied challenges to the individual mandate.

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Health Care Financing Reform (131): Sixth Circuit Narrowly Upholds Affordable Care Act

June 29, 2011

By a vote of 2-1 the Sixth Circuit has upheld the Patient Protection and Affordable Care Act.

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Health Care Financing Reform (130): Oral Argument Before the Sixth Circuit in Thomas More Law Center v. Obama

June 2, 2011

The Sixth Circuit heard oral argument in Thomas More Law Center v. Obama yesterday on the constitutionality of the Patient Protection and Affordable Care Act. 

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S.B. 1433 – Commerce Clause, Spending Clause

February 13, 2011

The last two posts have described two aspects of proposed Arizona S.B. 1433: its attempt to nullify federal laws, as well as its notion that the Constitution is a compact among the several states and that Congress' implied powers are severely limited.  This post concerns how the Bill's sponsors conceive of Congress' powers under the [...]

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