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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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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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Prominent Supporters of Terrorist Organization MEK May Not Be Protected by First Amendment

March 16, 2012

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the […]

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Health Care Briefs: Amicus Briefs Attempting to Protect Specific Provisions of the Affordable Care Act

March 14, 2012

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court […]

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Ninth Circuit Affirms District Court, Strikes Down Proposition 8

February 8, 2012

On Tuesday the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Perry v. Brown, the Prop 8 case.  The Court of Appeals struck down Proposition 8, but it did so on narrow grounds.  It is unlikely that the United States Supreme Court will agree to review the decision […]

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Family Values, Economics, and the Red State / Blue State Divide on Constitutional Interpretation

October 2, 2011

Differences over the interpretation of the Constitution often reflect underlying economic differences.  In particular, differences in income and education affect attitudes about marriage, divorce, contraception, abortion, women's rights, and same-sex marriage.

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New England Journal of Medicine Article on the First Amendment and Commercial Speech in the Public Health Context

August 19, 2011

On August 3, the New England Journal of Medicine published Higher First Amendment Hurdles for Public Health Regulation by Kevin Outterson.  This brief essay contains an excellent review of the commercial speech doctrine in general and the Supreme Court's recent decision in Sorrell v. IMS Health, Inc. in particular.

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The Murfeesboro Mosque, Herman Cain, RLUIPA, and the First Amendment

July 16, 2011

The AP reports Herman Cain opposes planned Tennessee mosque.  In remarks to reporters at a campaign stop at Murfeesboro, Tennessee, Republican presidential candidate Herman Cain voiced opposition to the construction of a mosque in that city.  This matter brings to mind a number of important aspects of freedom of religion.

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Does a Newspaper Have the Right Under the First Amendment to Hack into Someone's Voice Mail?

July 14, 2011

Rupert Murdoch's News Corporation allegedly hacked into the voice mail accounts of thousands of persons in Great Britain, including the royal family, the victim of a terrorist attack, and a thirteen-year-old girl who was abducted and killed.  It has also been reported that the company may have hacked the phones of 9/11 victims in America while trolling for news.  […]

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Under the Constitution May the United States Default on Existing Debt?

July 9, 2011

Some government officials have questioned whether in light of the Fourteenth Amendment Congress may refuse to raise the debt ceiling.  The real question is: "Does the Constitution permit the federal government to default on existing debt?

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