Tag Archives: volokh conspiracy

“Unconstitutional,” says the 11th Circuit.

Unconstitutional”

The news making its way through the legal blogosphere, and the online news outlets, is that the 11th Circuit has ruled the individual mandate part of the Patient Protection and Affordable Care Act (the “Act”) is unconstitutional.

Let me underscore that: only the individual mandate was found unconstitutional. The rest of the law has been, for now, left untouched.

The Washington Post called it one of the “most significant legal setbacks to the Obama administration’s health-care overhaul.”

If  you’re short on time, read at least the excerpts of the 2-1 decision  (of a very lengthy opinion) over at the Volokh Conspiracy. In short the Act is:

[...] the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.

Etc, etc…and, here’s the part the right will love:

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “

Too bad this didn’t come out yesterday. The Iowa Republican debate would have been that much more juicy with the ruling hanging in the air, even with the Supreme Court still in the Act’s future.

If  you have more time, here are a few more commentaries you might look at:

From Utah Political Summary’s Curt Bentley:

One of the more odd things about the majority opinion — at least in my humble opinion — is its use of an overinclusiveness argument.  Over/underinclusiveness is a consideration in individual rights cases, but, in my opinion, has no real role to play when it comes to evaluating a Congressional action under the Commerce Clause.  The over/underinclusiveness analysis is designed to get at the sincerity of a legislature’s expressed motivations.  For example, if a legislature regulates more broadly (or narrowly) than necessary to solve a particular problem, one can infer that it may be dislike for a certain group, rather than a desire to solve the stated problem, that motivates the legislature action.

Jonathan Turley, expressing concerns about federalism issue the Act affects opined that

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

In other words, if the feds can do this, what can’t they do? (And, I would add, what does that mean for the 10th Amendment?

Ilya Somin, also at Volokh, noted that this wasn’t a partisan decision:

Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.

Jonathan Adler says “Hear, hear!

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In which I am distracted, and libertarians infiltrate polite society

I’m a bit preoccupied. My Better Half reached her due date yesterday, and we are anxiously awaiting whatever comes next.

So, in the meantime, while I’m trying to get my “head in the game,” here’s some stuff to expand your knowledge and entertain your senses. Or maybe vice-versa. Also, libertarian views on the rise:

  • Said Judge Posner, of an alleged serial spammer’s courtroom presentation. “It’s not only incompetent, it’s grotesque. You’ve got damages jumping around from $11 million to $130 million to $122 million to $33 million. In fact, the damages are probably zero.” Timothy B. Lee at Ars Technica.
  • “Montgomery County officials have allowed the children to reopen their lemonade stand, by relocating it about 100-feet away from the intersection where it was set up Thursday.” This after they fine the tots $500 for their enterprising ways. WUSA9.com
  • Wanna go to Harvard? Apparently the White House is a good stepping stone. “About a half-dozen staffers will begin at the premier law school this fall, bringing a rare skill set, a golden Rolodex and tales of the corridors of power to Harvard Yard. The exodus of the younger White House staffers marks the first major departure of junior aides in the Obama administration.” Politico.
  • This is for you Alex (as you consider forcibly moving your fellow Americans to Somalia): Ilya Somin wonders if the public is becoming more libertarian. “Obviously, the vast majority of the public is not nearly as libertarian as most libertarian activists and intellectuals are. But it does seem to be more libertarian than the median voter of the recent past.” The Volokh Conspiracy.
  • If Ilya ain’t enough for you, the NYT column FiveThirtyEight (Nate Silver) is getting in on the action, too, citing a CNN poll that seems to show a shift.

Whether people are as libertarian-minded in practice as they might believe themselves to be when they answer survey questions is another matter. Still, there have been visible shifts in public opinion on a number of issues, ranging from increasing tolerance for same-sex marriage and marijuana legalizationon the one hand, to the skepticism over stimulus packages and the health-care overhaul on the other hand, that can be interpreted as a move toward more libertarian views.

And, just for kicks, here’s a graph:

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Volokh’s caption contest: may the force be with you

And now for something completely different, and good for a chuckle, too.

The Volokh Conspiracy is running a caption contest for this photo:

The caption winner so far?

“You don’t need to see my birth certificate.”
“I don’t need to see your birth certificate.”

(The Volokh Conspiracy)

Tattoos: Free speech on your body

Tokyo Tatoo
Image by megabn via Flickr

While I suppose it would be plausible for other circuits to deal with tattoos as political speech, it’s really no surprise that it was the the U.S. Court of Appeals for the Ninth Circuit, in Anderson v. City of Hermosa Beach, that actually did.  And that found them to be speech.

Some legal context before a piece of the opinion: the First Amendment right to Free Speech is not unlimited.  Government can, in certain situations, regulate speech, and you see those situations referenced in the following section from the opinion, by Judge Bybee:

In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court’s order granting summary judgment in favor of the City and remand with instructions to grant Anderson’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.

Jonathon Alder, at the Volokh Conspiracy, included, in his review of the opinion, the concurring opinion of Judge Noonan, who wrote a separate concurring opinion:

I concur in the holding of the court, and I agree with Judge Bybee’s robust defense of the values protected by the First Amendment.

I write to state that tattooing may be purely expressive, not that it always is. Any text may be expressive but is not invariably so. A laundry list is normally not protected by the First Amendment, but William Carlos Williams made a grocery list into a poem. Context is all. A tattoo punitively affixed is unprotected.

Accepting the fact that a tattoo may qualify as protected speech, I note that creation of a tattoo may involve danger to the health of its recipient, so that tattooing requires regulation for health different from regulation, say, of a press. Tattooing as a business may also require regulation to assure that it does not attract minors. Finally, while we are bound to protect the First Amendment value at issue, we are not bound to recognize any special aesthetic, literary, or political value in the tattooist’s toil and trade.

(thx to How Appealing, via The Volokh Conspiracy)

Striking study results: family values weaken families?

Striking study results: family values weakening families? http://ow.ly/1GQwd maybe values should include prudence & financial independence.