Question about the alleged health insurance "mandate

[Sanford Levinson]

So once one Ilya offers his "legal realist" caveat, the game is also over, i.e., the appeal is that one's fellow conservative Republicans will join in political opposition to the health bill by adopting a necessarily controversial theory of the Constitution to achieve that happy result.

sandy

-----Original Message-----
From: Ilya Somin [mailto:isomin at gmu.edu] 
Sent: Tuesday, March 23, 2010 3:58 PM
To: Sanford Levinson
Cc: Mark S Kende; CONLAWPROF at lists.ucla.edu
Subject: Re: RE: Question about the alleged health insurance "mandate

I would make 2 points about the doctrine:

1. Broad as it is, Raich still covers "economic activity," not inactivity. Even if doing all sorts of things is "economic activity," it doesn't follow that not doing them is. Raich is consistent with the latter conclusion, but it doesn't require it.


2. Even if the current language in Raich does stretch that far, it could be pared back by the Court without overruling it. Lower courts don't follow that language consistently even now (e.g. - the 4th Circuit in Comstock). 

>From a legal realist point of view, I think that the 2 swing justices in Raich (Kennedy and Scalia) ruled the way they did at least in part out of fear that doing otherwise would undercut the War on Drugs, a policy they strongly support. By contrast, I doubt they have similar warm feelings towards the Obama health care plan. 

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339


----- Original Message -----
From: Sanford Levinson <SLevinson at law.utexas.edu>
Date: Tuesday, March 23, 2010 4:48 pm
Subject: RE: Question about the alleged health insurance "mandate

> I have no doubt that Ilya (and Randy) would love to overrule 
> Raich, but doesn't that give the argument away, i.e., that current 
> doctrine, joined in by Scalia, amply covers the bill?
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Ilya Somin
> Sent: Tuesday, March 23, 2010 3:44 PM
> To: Mark S Kende
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: Re: Question about the alleged health insurance "mandate
> 
> Fair enough. I do think that Raich's language is extraordinarily 
> broad and could be interpreted to cover this case. But I don't 
> think that such an interpretation is compelled by the outcome of 
> that decision, and in any event I believe that the Court would do 
> well to pare back Raich's more extreme language, if not overrule 
> it entirely.
> 
> Ilya Somin
> Associate Professor of Law
> Editor, Supreme Court Economic Review
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
>