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The Proper Scope of Federal Power: The Meaning of the Commerce Clause

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0012
Subject:
Law, Constitutional and Administrative Law

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not ... More


The Health Care Case: The Supreme Court's Decision and Its Implications

Nathaniel Persily, Gillian E. Metzger, and Trevor W. Morrison (eds)

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.001.0001
Subject:
Law, Constitutional and Administrative Law

The Supreme Court’s decision in the Health Care Case, NFIB v. Sebelius, gripped the nation’s attention during the spring of 2012. Like the legislative battle leading to adoption of the Affordable ... More


Constitutionalism: Contract or Coordination?

Russell Hardin

in Liberalism, Constitutionalism, and Democracy

Published in print:
1999
Published Online:
November 2003
ISBN:
9780198290841
eISBN:
9780191599415
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/0198290845.003.0003
Subject:
Political Science, Political Theory

Constitutionalism requires merely coordination on big issues of general structure and protections; coordination on any detailed program is virtually out of the question. It works at all only if there ... More


American Law and Market Integration

Robert Schütze

in From International to Federal Market: The Changing Structure of European Law

Published in print:
2017
Published Online:
September 2017
ISBN:
9780198803379
eISBN:
9780191841576
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198803379.003.0003
Subject:
Law, EU Law, Constitutional and Administrative Law

What is the structure of the ‘American’ market; and how was the latter ‘established’? When the Philadelphia Convention debated the 1787 Constitution, there was little argument that the (new) Union ... More


Restoring the Lost Constitution: The Presumption of Liberty

Randy E. Barnett

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
book
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.001.0001
Subject:
Law, Constitutional and Administrative Law

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially ... More


Conservatives and the Courts

Michael Greve

in Crisis of Conservatism?: The Republican Party, the Conservative Movement, and American Politics After Bush

Published in print:
2011
Published Online:
September 2011
ISBN:
9780199764013
eISBN:
9780199897186
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199764013.003.0011
Subject:
Political Science, American Politics

This chapter inventories the accomplishments and defeats of the conservative legal movement. It argues that the conservative legal movement has a high degree of professionalism, financial stability ... More


Why Care What the Constitution Says?

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0001
Subject:
Law, Constitutional and Administrative Law

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the ... More


Much Ado: The Potential Impact of the Supreme Court Decision Upholding the Affordable Care Act

Robert N. Weiner

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0006
Subject:
Law, Constitutional and Administrative Law

The partisan debate that characterized the legislative process leading to the ACA’s passage was replicated in the litigation and eventually even in the various opinions delivered by the Supreme ... More


Gibbons v. Ogden

Lackland H. Bloom

in Do Great Cases Make Bad Law?

Published in print:
2014
Published Online:
April 2014
ISBN:
9780199765881
eISBN:
9780199366903
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199765881.003.0003
Subject:
Law, Legal History

Gibbons v Ogden remains the Supreme Court’s foundational Commerce Clause decision. The chapter provides a summary of the complex set of historical circumstances that led to the Court’s invalidation ... More


More Law Than Politics: The Chief, the “Mandate,” Legality, and Statesmanship

Neil S. Siegel

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0013
Subject:
Law, Constitutional and Administrative Law

In the aftermath of the Court’s decision in the Health Care Case, both supporters and detractors seemed to agree that political rather than legal factors shaped the position and opinion of the Chief ... More


The Individual Mandate and the Proper Meaning of “Proper”

Ilya Somin

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0010
Subject:
Law, Constitutional and Administrative Law

The Supreme Court’s recent decision on the constitutionality of the ACA’s individual health insurance mandate is a major milestone in judicial interpretation of the meaning of “proper” in the ... More


Limits to the Union’s ‘Internal Market’ Competence(s): Constitutional Comparisons

Robert Schütze

in The Question of Competence in the European Union

Published in print:
2014
Published Online:
April 2014
ISBN:
9780198705222
eISBN:
9780191774294
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198705222.003.0011
Subject:
Law, EU Law, Constitutional and Administrative Law

This chapter examines the internal market competence of the United States and the EU. It first considers the American internal market competence — the ‘Commerce Clause’ which allows Congress to ... More


The June Surprises: Balls, Strikes, and the Fog of War

Charles Fried

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0005
Subject:
Law, Constitutional and Administrative Law

The Court’s decision in the Health Care Case was full of surprises. Among them was the Chief Justice’s siding with the Court’s more liberal justices to uphold the ACA under the tax power, seven ... More


Judicial Minimalism, the Mandate, and Mr. Roberts

Jonathan H. Adler

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0011
Subject:
Law, Constitutional and Administrative Law

Chief Justice Roberts’s decision in NFIB holding that the individual mandate exceeded the scope of Congress’s power to regulate commerce, but could nonetheless survive as a constitutional exercise of ... More


A Most Improbable 1787 Constitution: A (Mostly) Originalist Critique of the Constitutionality of the ACA

Richard A. Epstein

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0004
Subject:
Law, Constitutional and Administrative Law

The United States has had two constitutions over the past 225 years. The first Constitution, which featured limited government and strong property rights, was crafted in 1787, after which it was duly ... More


The Constitutional Foundations of Health and Prosperity

Werner Troesken

in The Pox of Liberty: How the Constitution Left Americans Rich, Free, and Prone to Infection

Published in print:
2015
Published Online:
January 2016
ISBN:
9780226922171
eISBN:
9780226922195
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226922195.003.0003
Subject:
History, Economic History

This chapter argues that the Constitution was not designed to control disease in the most effective ways possible, but to promote economic and political freedoms. Because the Constitution was ... More


Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts

Marsha S. Berzon

in The Embattled Constitution

Published in print:
2013
Published Online:
March 2016
ISBN:
9780814770122
eISBN:
9780814762806
Item type:
chapter
Publisher:
NYU Press
DOI:
10.18574/nyu/9780814770122.003.0009
Subject:
Law, Constitutional and Administrative Law

This chapter focuses on “Bivens actions,” or private suits for damages against federal officials who violate an individual's constitutional rights. Such actions are not mentioned in the U.S. ... More


Federalism Old and New

in Polyphonic Federalism: Toward the Protection of Fundamental Rights

Published in print:
2009
Published Online:
March 2013
ISBN:
9780226736624
eISBN:
9780226736648
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226736648.003.0003
Subject:
Law, Constitutional and Administrative Law

This chapter suggests that to look for the revival of state particularism is to misunderstand the fundamental character of contemporary federalism in the United States. The American Revolution left ... More


“Necessary,” “Proper,” and Health Care Reform

Andrew Koppelman

in The Health Care Case: The Supreme Court's Decision and Its Implications

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199301058
eISBN:
9780199344888
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301058.003.0008
Subject:
Law, Constitutional and Administrative Law

The Necessary and Proper Clause was always a major obstacle to the constitutional case against the ACA’s individual mandate. Under settled law at the time that the ACA was enacted, the mandate was ... More


Federal Public Health Authority

Scott Burris, Micah L. Berman, Matthew Penn, and, and Tara Ramanathan Holiday

in The New Public Health Law: A Transdisciplinary Approach to Practice and Advocacy

Published in print:
2018
Published Online:
September 2018
ISBN:
9780190681050
eISBN:
9780190681081
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780190681050.003.0009
Subject:
Public Health and Epidemiology, Public Health

This chapter explores the powers of Congress to pass federal public health laws and to delegate authority to federal agencies. The chapter starts with an explanation of Congress’s limited, enumerated ... More


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