University of Richmond Law Review

Why Virginia’s Challenges to the Patient Protection and Affordable Care Act Did Not Invoke Nullification

uradmin — Mon, 12 Mar 2012 15:16:03 +0000

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Sense and Severability

uradmin — Mon, 12 Mar 2012 15:14:39 +0000

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States’ Rights and State Standing

uradmin — Mon, 12 Mar 2012 15:13:33 +0000

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The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to § 5000A of the Tax Code

uradmin — Mon, 12 Mar 2012 15:11:51 +0000

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The Rhetoric Hits the Road: State Challenges to Affordable Care Act Implementation

uradmin — Mon, 12 Mar 2012 15:08:20 +0000

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Beyond the Doctrine: Five Questions that Will Determine the ACA’s Constitutional Fate

uradmin — Mon, 12 Mar 2012 15:06:29 +0000

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Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and the Affordable Care Act

uradmin — Mon, 12 Mar 2012 15:04:57 +0000

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Constitutional Forbearance

uradmin — Mon, 12 Mar 2012 15:03:25 +0000

Eleven federal judges have ruled on the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”), also sometimes referred to as “Obamacare.” Five of the six judges appointed by Republican Presidents held that the mandate violated the Constitution, while four of the five judges appointed by Democratic Presidents upheld the law. In the wake of these rulings, countless commentators quickly inferred that the judges’ political preferences and affiliations were deciding factors and forecast that the seemingly inevitable Supreme Court decision of the matter would split the High Court 5-4, with Justice Kennedy casting the deciding vote. The four other Justices ap-pointed by Republicans are expected to vote to invalidate the law, and the four Justices appointed by Democrats are expected to vote to sustain it. How we came to this juncture, why, and who bears the blame are difficult and divisive questions. But for reasons explored below, all those concerned ought to able to agree that the current state of affairs is regrettable, if not intolerable. In short, as the Obamacare cases starkly illustrate, our constitutional law too often looks and is too much like ordinary, partisan politics by another means. Putting aside questions about the provenance of the present dilemma, this essay ventures a claim about the way out of this situation. Ironically the same cases that so plainly exhibit the problem also provide a means to begin solving it.

Litigating Federal Health Care Legislation and the Interstices of Procedure

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Executive Power and the Law of Nations in the Washington Administration

uradmin — Mon, 13 Feb 2012 15:09:26 +0000

In this issue’s lead article, Professor Reinstein continues his examination of the development of executive power over foreign affairs during the early history of the Republic. Recently, both legal scholars and the courts are looking to the actions of the first administration as a potential precedent on how to construe the scope and source of the President’s authority to determine and conduct the United States’ foreign policy. Last year, in an article published in this journal, Professor Reinstein concluded that no originalist justification exists for a plenary executive recognition power. In this article, Professor Reinstein expands this discussion through an original historical and jurisprudential account of the Neutrality Crisis of 1792–1794 to draw three revisionist conclusions. First, he concludes that the Washington administration’s most plausible source of constitutional authority was the Executive’s duty, under the Take Care Clause, to obey the law of nations as expounded in the natural law treatises. Second, the Washington administration set a key precedent for the Executive’s duty to obey the constraints of international law. And third, since profound changes in the United States have shown that the founders’ way of thinking can be incompatible with our own, Professor Reinstein concludes that originalism is limited as a constitutional methodology and that theories of expansive executive powers must find foundations outside of the first President’s decisions.