Archive for the 'Originalism' Category

Obamacare decision throws constitutional shadow on federal tort reform

Posted by on Oct 18 2013 | Constitutional History, Constitutional Law, Constitutional Theory, Corporate Welfare, defunding Obamacare, federalism, House Republicans, Natelson Rob', obamacare, Originalism, Rob Natelson, U.S. Constitution

Just to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of state court procedures—including how they conduct jury trials and what evidence is introduced.

Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.

This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.

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VIDEO: ObamaCare Ruling, Waldo Canyon Wildfire

Posted by on Jul 16 2012 | Health Care, health control law, Idiot Box (TV Show), obama, obamacare, Originalism, PPC, U.S. Constitution

Here is our constitution scholar Rob Natelson explaining the ObamaCare Supreme Court ruling on my TV show:

Here is Colorado Springs Gazette editorial page editor Wayne Laugesen on the saga of the Waldo Canyon wildfire.

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VIDEO: Randy Barnett on Losing ObamaCare, Winning the Constitution

Posted by on Jul 12 2012 | Health Care, health control law, obama, obamacare, Originalism, PPC, U.S. Constitution

Here’s another take on the recent Supreme Court’s ObamaCare decision. This time we get to hear from perhaps the most famous constitutional scholar in the country, Randy Barnett of Georgetown University. He sat down with Damon Root of Reason TV for this half hour interview. I’ve watched the whole thing and it is well worth your time. (yes I know. 30 minutes YouTube time is 2.5 days real time). Randy has a couple of insights that are incredibly profound. I’ll mention just one here: that Chief Justice Roberts’ ruling was unique on a level that is still difficult to appreciate. It was so unique that ONLY HE held the position. Not a single law scholar, constitutional lawyer, lower court, academic, law student, man, woman, or child anywhere in the world held the view Justice Roberts espoused. Watch the whole video here.

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The Bar Review version of NFIB v. Sebelius

Posted by on Jul 10 2012 | Commerce Clause, Constitutional Law, Individual Mandate, Originalism, supreme court, Taxing and Spending Clause

Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.

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Chief Justice Roberts and the window tax

Posted by on Jul 09 2012 | Constitutional History, Constitutional Law, Health Care, Individual Mandate, Originalism, Taxes, Taxing and Spending Clause

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be  ”undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). A decision not to buy overpriced insurance from Congress’s Big Insurance pets, like the decision not to buy a particular type of window, is not an “accession to wealth.” The decision provides no additional income to the person.

So let’s accept Chief Justice Roberts’ theory that a window tax and the individual mandate are analytically comparable. On July 9, 1798, Congress enacted a direct tax statute, to pay for national defense preparations against France. “An Act to provide for the valuation of lands and dwelling-houses, and the enumeration of slaves, within the United States. On July 14, Congress passed the “Direct Tax Act,” to provide for collection of the July 9 taxes. Pursuant to the Direct Tax Act, federal assessors were to examine houses to assess them for purposes of the direct tax. In addition, the Direct Tax Act ordered the assessors make records of the number and sizes of windows in each house. The window data were to be gathered so that Congress could, in the future, decide to impose a direct tax on windows. Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution 76-77 (2004).

It seems there was no dispute that a window tax was a direct tax. A fortiori, a tax on not having certain types of windows would be also be a direct tax. This is one more piece of evidence that Chief Justice Roberts was wrong in stating that the individual mandate “tax” is not a direct tax. Much more extensive discussion of the direct/indirect tax issue (but not of window taxes) can be found in Rob Natelson’s 27 minute podcast on the subject, for


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Is the individual mandate a “tax” according to the original meaning?

Posted by on Jun 29 2012 | Constitutional History, Constitutional Law, Individual Mandate, Originalism, supreme court, Taxing and Spending Clause

Absolutely not. Rob Natelson explains why in this 27 minute podcast from

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Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more

Posted by on Jun 29 2012 | Constitutional History, Constitutional Law, Necessary and Proper, Originalism

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from whether it is “necessary.” And CJ Roberts’ opinion is the first in Supreme Court history to find that a law which is “necessary” is not proper. Ilya’s amicus brief was the key brief on the necessity of making separate inquiries into “necessary” and “proper.”

That’s not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are “incidental” to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored by Natelson, Lawson, Geoffrey P. Miller and Guy I. Seidman.

The brief devotes much attention to the newspaper essays which John Marshall wrote defending the McCulloch decision. These essays were collected in the book John Marshall’s Defense of McCulloch v. Maryland, published in 1969 and edited by Gerald Gunther. The Roberts opinion is the first in Supreme Court history to cite this book, and the first to cite Marshall’s essays.

The Roberts opinion joins McCulloch v. Maryland as an essential case in any law school textbook that covers the Necessary and Proper Clause. While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way.  As of yesterday, Supreme Court doctrine about the Necessary and Proper Clause has fully returned to 1791/1819. The originalist victory is complete.

For some background on the doctrine of incidental powers, one starting point is the Lawson/Kopel article Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011). A follow-up article, Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), replies to Andrew Koppelman’s warning that following McCulloch‘s originalist doctrine will cause national catastrophe. It looks like we’ll find out if he’s right. If you’re assuming that he is, and thus time is short before The End, a condensed version of our Yale article is available on Legal Workshop.

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AUDIO: Supreme Court’s ObamaCare Decision

Posted by on Jun 29 2012 | Constitutional Law, Health Care, health control law,, Kopelization, Legal professor, obama, obamacare, Originalism, PPC, Taxes, U.S. Constitution

Thanks to our two in-house constitutional law scholars, Dave Kopel and Rob Natelson, we have a couple of fresh off sound editor podcasts on yesterday’s SCOTUS ruling. But before I link to you that, take a look at Dave’s article on the ruling in the SCOTUSblog.

Just hours after the ruling came down yesterday, Dave got on the phone with George Mason University Law professor Ilya Somin for analysis. You can find the podcast here.

Rob Natelson went home immediately yesterday after the decision came down to read the Court’s opinions in their entirety. Today he reported his findings both on his blog and on Rob’s take is focused primarily on why the argument that the penalty for not buying insurance is really a “tax” has no constitutional basis or founding evidence. Listen to Rob’s iVoices podcast here.

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Podcast on the creation of the Second Amendment

Posted by on Jun 08 2012 | Constitutional History, Constitutional Law, guns, Militia, Originalism

For my co-authored textbook Firearms Law and the Second Amendment, I’ve been doing a series of podcasts on each chapter. Now available is the podcast for Chapter 4, which covers the Philadelphia Convention, the ratification debates, the creation of Bill of Rights, and St. George Tucker’s contemporaneous exposition of the original meaning of the Second Amendment.  The podcast is 45 minutes. Here are the links for Aspen Publishers web page for the textbook, and the Amazon page. It’s also available from (Barnes & Noble).

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Independence Throws Left, Right Combo at Obamacare

Posted by on Jan 20 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Economic LIberties, Health Care, health control law, obama, obamacare, Originalism, PPC, U.S. Constitution

Obamacare is headed to the Supreme Court. Great news! The cherry on top is that The Independence Institute is filing not one, but TWO amicus briefs (amici) on behalf of liberty and against the health care takeover. Constitutional scholars Dave Kopel and Rob Natelson take on the Medicaid mandate in one and the individual mandate in the other. Before I get into the Obamacare briefs, let’s take a step back and understand what this means. Dave Kopel has a rich history of influencing major Supreme Court decisions. For example, both the Heller and McDonald decisions were influenced by Dave’s Second Amendment work. For Dave’s most recently submitted amici, visit his website and go to the “In the Courts” section. There’s a half dozen briefs listed there that are just from this past year. To say that Dave is prolific is an injustice. He’s more like Gandalf casting unconstitutional demons out of Mordor Washington, DC.

Ok, back on track. The first brief on how the Medicaid mandate is unconstitutional was filed earlier this week (PDF here). I won’t get into the details because, well, I’m not what you call a “reader,” but I was able to get through Rob Natelson’s summary on his blog. The gist of the argument is quite simple: the Feds are big bullies. If the country were a playground, they’d be going around giving all the state’s wedgies and stealing their milk money. But it’s actually worse than that. Rob makes the case that it’s not only bullying, but also hostage taking. In other words, a bully with a taste for kidnapping. Double bad. Built into the Medicaid mandate in Obamacare are requirements that the states expand their Medicaid programs… OR ELSE. The “or else” part is the threat of withholding federal Medicaid funding. Hence, a large sliver of each state’s budget held hostage. As Rob puts it,

Since federal Medicaid funds are a huge portion of all states’ budgets, the effect is to subordinate state fiscal policy to the whim of federal officials. This is clearly unconstitutional.

Stay tuned for details and PDF of the other amicus. It will focus on the unconstitutionality of the individual health insurance mandate. Word is, Rob and Dave work their magic on the Commerce Power and the Necessary and Proper Clause. I also hear that they plan to sit down for an podcast with my main minion Justin Longo on both briefs. I’ll post the brief and the podcast here when they come out.

Until then, say NO to bullying.

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