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February 14, 2012|Massachusetts v. Mellon, Medicaid, Obamacaid, Obamacare, PPACA, South Dakota v. Dole

Obamacaid’s Constitutional Poison

by Michael S. Greve|

The government’s reply brief on Obamacare’s Medicaid expansion (“Obamacaid”) provides a competent, confident defense of the statute. It also provides occasion to revisit the parties’ positions one more time and to draw two conclusions. One: in attempting to buttress a losing argument against Obamacaid, the plaintiff-states may have detracted, unwittingly, from a winning argument against Obamacare’s “health benefit exchanges.” Two: the true problem isn’t Obamacaid’s constitutionality but its pernicious political economy.

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February 9, 2012|federal mandate, Hirabayashi v. United States, individual mandate, Korematsu v. United States, Obamacare, PPACA

The PPACA Mandate: The Government’s Best Case

by Michael S. Greve|

The Obamacare plaintiffs, I’ve noted here, have a point: a federal mandate to purchase health insurance raises enumerated powers problems of a sort that mere prohibitory regulations—“don’t do X”—do not. Today, let’s hear it for the feds. With the exception of narrowly cabined “mandates” that ensure the operation of the federal government’s own institutions (such as juries and the armed forces), say plaintiffs, the federal government has never compelled performance as a condition of lawful residence in the United States. That’s a pretty potent argument. The government’s response is that a congressional failure to exercise a particular power doesn’t mean that…

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January 19, 2012|ARRA, James Blumstein, Medicaid, MOE, Obamacare, PPACA, Robert Helms

Obamacaid Revisited

by Michael S. Greve|

In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there (link no longer available) that the plaintiffs will and should lose that argument. A terrific amicus brief (link no longer available) by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side.

Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion.

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January 13, 2012|Competitive Enterprise Institute, individual mandate, Joseph Antos, Michael Carvin, Obamacare, Paul Clement, PPACA, Thomas Miller, Tom Christina

Obamacare: The States’ Rights and Wrongs

by Michael S. Greve|

Briefs have been trickling into the U.S. Supreme Court in the Obamacare cases. Soon, they’ll come flooding: briefing on the Affordable Care Act’s individual mandate is starting today.

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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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