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February 15, 2019|Joan Biskupic, John Roberts, NFIB v. Sebelius, Supreme Court

Judicial Statesmanship versus Judicial Fidelity

by John O. McGinnis|

Chief Justice John Roberts before the 2013 State of the Union Address (Joshua Roberts / Alamy Stock Photo).
Since the boundaries of left and right are always changing, a court focused on retaining its political capital would have the constancy of a weather vane.

January 17, 2019|Affordable Care Act, Fifth Circuit Court of Appeals, John Roberts, Judge Reed O'Connor, NFIB v. Sebelius

On Obamacare, Is Common Sense Really Judicial Activism?

by Thomas Ascik|

Affordable Care Act text (Ellen McKnight/Shutterstock.com).
Ironically, it was efforts to save the ACA that produced Judge O'Connor's conclusion that Obamacare could not stand.

February 22, 2017|Federalism, Galarza v. Szalczyk, NFIB v. Sebelius, Printz v. United States, sanctuary cities

Of Sanctuaries and Sanctimony

by Michael S. Greve|

Chicago: Protestors March Against Border Security Bill (Photo by Scott Olson/Getty Images)

There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.

For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.

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January 24, 2017|Commerce Clause, Endangered Species Act of 1973, Gonzales v. Raich, NFIB v. Sebelius, Texella reyesi, Wickard v. Filburn

Will a Tiny, Blind, Subterranean Bug Be the Undoing of the Federal Leviathan?

by Mark Pulliam|

The Bone Cave Harvestman

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

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May 13, 2016|House of Representative v. Burwell, King v. Burwell, NFIB v. Sebelius, Obamacare

The President’s Power to Spend

by Michael S. Greve|

In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.

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March 31, 2015|District of Columbia v. Heller, duty of clarity, Jack Balkin, James Iredell, Larry Solum, NFIB v. Sebelius

An Active, But not an Activist, Judiciary

by John O. McGinnis|

The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion to construct the Constitution, even when the semantic meaning is not clear.  But it does not follow that the judiciary cannot vigorously discover and enforce the meaning of provisions that might seem indeterminate to a layperson.

Judges have many tools to clarify the meaning of provisions that may seem vague, opaque, or ambiguous. The Constitution was not created ex nihilo but against a background of legal methods that help make legal meanings more precise. To decline to deploy these legal methods is to discard a valuable portion of our traditional science of law. Judges are simultaneously empowered and constrained by these methods.

As I have argued, this view of judicial duty had overwhelming support in the founding era. For instance, James Iredell, one of the first Supreme Court Justices, affirmed that judges have a duty of clarity before invalidating legislation under a constitution, whether state of federal.  But he also made clear that judges use “every consideration” in forming a judgment as the meaning of the Constitution, even if this process proved “difficult.”

Justice Roberts provided an example of this process in NFIB v. Sebelius in his interpretation of the Commerce Clause. 

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March 17, 2014|

Due Deference to the Political Branches

by Gail Heriot|

In response to: In Defense of the Classical Liberal Constitution

Recently, I heard an observation about liberals and conservatives that rang true to me: Modern liberals tend to view themselves as freethinkers no matter how rigidly they adhere to liberal orthodoxy. Modern conservatives often display the opposite vice, imagining they speak for the average citizen even when election returns contradict that belief. One consequence is that many conservatives think of themselves as zealous advocates both of democracy and of limited government as envisioned by 18th century classical liberals. Until recently at least, they have often ignored the tension between the two. Richard Epstein’s wide-ranging The Classical Liberal Constitution: The Uncertain Quest…

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More Responses

The Skeptical Constitution

by F.H. Buckley

I’m terribly sorry. I seem to have come in late. I missed the part where the classical liberal gets to write the constitution. I know that a good many classical liberals, including my friend Richard, have offered their thoughts on the subject, but that’s not how I understand constitutions to be made. Sir Lewis Namier thought…

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Constitutional Compromise and Classical Liberalism

by Joel Alicea

Across the conservative legal movement, there is a reassessment of the principles that have guided legal conservatives since the end of the Warren Court. Ideas that were once orthodoxy are now open to question. At the level of doctrine, the movement’s longstanding defense of Chevron has been replaced with the deep unease evinced by the…

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Richard Epstein Responds: Personal Liberty, Private Property and Limited Government Are Still the Keys to National Prosperity and Success

by Richard Epstein

I should like to thank my three commentators for their observations on my lead essay. Those remarks by Gail Heriot (my former student, I am proud to say) and Joel Alicea are decidedly in the friendly camp, and thus need little response. The comment by my friend Frank Buckley shows a good deal of Canadian…

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December 9, 2013|Medicaid, NFIB v. Sebelius

Quick Update

by Michael S. Greve|

Apologies for the prolonged blogging hiatus. I’m not dead yet, just snowed under—I’ll resume my regular blogging at the nearest occasion. Herewith a forthcoming law review piece on the “Medicaid ruling” of NFIB v. Sebelius. The gist of it: NFIB didn’t really do very much about the horrendous economic incentives that drive the program. “Not very much” doesn’t mean “nothing”: on the margin, the ruling may have increased some states’ willingness to forego the “opportunity” to expand the program even further; and in the short term it is an opportunity. To illustrate: in my home state of Virginia, newly elected Governor McAuliffe promised to finance big road-building…

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May 6, 2013|14th Amendment, Alexander Hamilton, Antifederalists, NFIB v. Sebelius, Perry v. Hollingsworth, Supreme Court, The Federalist

Making the Supreme Court Safe for Democracy: A Conversation with Joshua Hawley

by Joshua Hawley|

Joshua Hawley discuss several ways a more targeted focus on self-government might challenge the Court's self-understanding of its expansive powers.

March 11, 2013|Commerce Clause, Gonzales v. Raich, NFIB v. Sebelius, Obamacare on Trial

Obamacare’s Constitutional Puzzle: Still Missing the Pieces

by Ilya Somin|

Last year’s Supreme Court decision on the constitutionality of the Affordable Care Act was one of the most controversial cases in American history.  In NFIB v. Sebelius, a narrow 5-4 ruling, the Court upheld the ACA’s individual health insurance mandate on the grounds that it was a constitutionally permissible tax, but rejected the federal government’s central arguments in defense of the mandate: the claim that it was authorized by Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The mandate, which requires most Americans to purchase government-approved health insurance by 2014, was the central focus of challenges to the constitutionality of “Obamacare” mounted by 28 state governments and numerous private parties.

ObamacareHarvard Law Professor Einer Elhauge’s book Obamacare on Trial  is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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