By Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, Ilya Somin (auth.), Trevor Burrus (eds.)

The cheap Care Act debate used to be the most very important and so much public examinations of the structure in our background. on the vanguard of that discuss have been the bloggers of the Volokh Conspiracy who, from ahead of the legislations used to be even handed, engaged in a lively, erudite, and available dialogue of the felony matters interested in the case.

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Extra info for A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case

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Thus, a strong political effort is probably necessary for litigation to succeed. Such two-track efforts have a long history. For example, The NAACP coupled its litigation strategy against segregation with a long-term political effort designed to win greater support for racial equality among white voters. Brown v. Board of Education and later decisions could never have happened without complementary political changes. Even a successful political strategy doesn’t necessarily guarantee victory in court.

But in focusing on Article I, Section 8, I wonder whether we’ve ignored another potential constitutional problem with provisions of Article I, Section 9. As I understand the current proposals, the individual mandate would operate as follows: a tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans. ” Why? ” So if the mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

But while I think judicial rejection of the mandate is unlikely, I hardly think the chances are as remote as Orin suggests. Recall the history of United States v. Lopez. S. Court of Appeals for the Fifth Circuit struck down the Gun-Free School Zones Act in 1993. Reversal in the Supreme Court was a foregone conclusion. No serious academic believed the decision would stand. And yet the Supreme Court confounded expectations and affirmed the Fifth Circuit, in part because the government was incapable of offering a theory upon which the statute could be upheld without obliterating what little was left of the limits on Congress’s commerce power.

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