Tag: Commerce Clause
Can an OSHA Vaccine Mandate Survive Judicial Review?
Last week, President Biden announced his plan to require private employers with 100 or more workers to mandate COVID vaccinations or require workers to be tested weekly. The mechanism to do this is the Department of Labor’s Occupational Safety and Health Administration (“OSHA”), which is working on an emergency temporary standard (“ETS”). For OSHA...
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ObamaCare Mandate Upheld: Those dirty, rotten taxes!
I am still working my way through the opinions in the health care case (193 pages in total), which can be found here. But here is what I see as the skinny: 1. Chief Justice Roberts defected from the ranks of the conservatives to uphold the individual mandate. The Vote was 5-4. Roberts, Ginsburg,...
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ObamaCare on the Ropes?
On Friday, the members of the Supreme Court will meet together and voice their positions on the Patient Protection and Affordable Healthcare Act. Prior to the three days of arguments, most pundits were skeptical that the Court would strike the law. However, in reading the tea leaves after argument, the bet is that swing-vote...
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Noxious Greenhouse Gases on Federal Power and Obamacare
Over at Opinionator, Linda Greenhouse of the NYT has a post expressing bewilderment at how anyone could urge the repeal of the individual mandate of the Patient Protection and Affordable Healthcare Act. At base she avers that those arguing against the constitutionality of the individual mandate are neo-Confederates who forget that, in her words, “the Civil...
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Commerce and Health Care: The Eleventh Circuit Speaks
Last week the 11th Circuit Court of Appeals struck down the individual mandate of the ObamaCare law. In tackling the issue, the court framed the question as follows: ”Whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.” The...
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Florida Judge Strikes Down Obamacare
Today, a U.S. District Court in Florida held that the individual mandate found in the Obamacare law is an unconstitutional use of the Commerce power. Judge Roger Vinson emphasized that this was not a decision on the wisdom of the law, but solely whether Congress has the power to pass it. If we accept the expansive interpretation...
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The Government on the Extent of the Commerce Power
In a dissent from a denial of cert. in Alderman v. United States, Justice Clarence Thomas highlights just how far the Government is willing to take the Commerce Power. The issue in Alderman was whether Congress may prohibit a convicted felon from possessing body armor. See 18 U.S.C. section 931. The vest had been sold in...
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Commerce, Economic Activity, Obamacare, and the Anti-Federalists
Recently, I have written a couple of short op-eds (see here and here) arguing that commerce, to the Framers and ratifiers of the Constitution, did not mean economic activity, gainful activity, etc. It means trade–among the states or with foreign nations, or with Indians. The purpose of the interstate Commerce Clause, which should guide interpretation, is creation of...
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Florida District Judge Hints that Obamacare Is Unconstitutional
Right now the score card is 2 judges in favor and one against the insurance mandate. According to reports, it might soon be 2-2. This report is from the New York Times: In a three-hour hearing, the judge, Roger Vinson of Federal District Court, said the law’s requirement that most Americans obtain insurance, a...
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Virginia Judge Strikes Down Provisions of Health Care Law
U.S. District Court Judge Henry E. Hudson’s ruling today affirms that there are limits to Congress’s powers under the Commerce Clause. Congress’s attempt to force Americans to participate in the market for health insurance is a bridge too far under current precedent. Judge Hudson rightly recognized that requiring Americans to participate in commerce to is...
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