Elizabeth Weeks Leonard *
What is it about health reform—about the particular exercise of federal power to compel the purchase of health insurance by individuals—that has sparked such concerted objection from states? Congress has reached deeply into areas of traditional state authority on other occasions in recent memory, without similarly provoking a majority of states to file federal lawsuits or engage in a multi-front attack to dismantle a validly enacted federal statute. How has a federal law, which most clearly infringes on individual rather than states’ rights, become the rallying cry for a nationwide Tenth Amendment reinvigoration movement? In keeping with the 2011 Allen Chair Symposium’s “Everything But the Merits” theme, this essay considers states’ lawsuits not merely beyond the merits but even beyond the litigation itself and places the litigation strategy in the larger context of other forms of state resistance to implementation of the Patient Protection and Affordable Care Act (“ACA” or “Act”).
Continue reading.
* Associate Professor, University of Georgia School of Law. J.D., 1999, University of Georgia; B.A., 1993, Columbia University. I am grateful to Carl Tobias and Kevin Walsh for inviting me to the 2011 Allen Chair Symposium and all of the Symposium participants for a stimulating discussion.
Kevin C. Walsh *
Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act (“ACA” or “Act”)—a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.
Continue reading.
* Assistant Professor, University of Richmond School of Law. J.D., 2002, Harvard Law School; M.A., 1999, University of Notre Dame; A.B., 1998, Dartmouth College.
Stephen I. Vladeck *
Writing for the 1966 volume of the Supreme Court Review, Professor Alex Bickel was hardly bashful in his criticism of the Supreme Court’s disposition of three high-profile cases from the preceding Term, each of which had raised fundamental constitutional questions of first impression about the newly enacted Voting Rights Act of 1965. Although his objections to the Court’s decisions in Harper v. Virginia Board of Elections and Katzenbach v. Morgan went to the merits, his real frustration with Chief Justice Warren’s opinion for the Court in South Carolina v. Katzenbach, which upheld several of the Voting Rights Act’s central provisions as valid exercises of Congress’s power to enforce the Fifteenth Amendment, was that it reached the merits in the first place.
Continue reading.
* Professor of Law and Associate Dean for Scholarship, American University Washington College of Law. J.D., 2004, Yale Law School; B.A., 2001, Amherst College. My thanks to Kevin Walsh for inviting me to participate in the 2011 Allen Chair Symposium for which this essay was prepared, and to Aminah Qureshi and the staff of the University of Richmond Law Review for their patience. Although I co-authored the Brief of Amici Curiae Professors of Federal Jurisdiction in Support of Appellant in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011), which argued against Virginia’s standing to challenge the constitutionality of the ACA (and from which some of the arguments offered herein have been derived), the views expressed in this essay are mine alone.
Tobias A. Dorsey *
When I was asked to speak about severability at the 2011 Allen Chair Symposium, I wasn’t sure I should, or even that I could. But the more I thought about it the more I realized I might be a good person for the task. First of all, I am not a scholar. I am a practitioner. I spent ten years working for Congress in the nonpartisan Office of Legislative Counsel of the House of Representatives. That means I spent a lot of time working with policymakers in Congress, helping them think through their policies and turn them into written proposals. I have advised clients about severability hundreds of times.
Continue reading.
* Special Counsel of the United States Sentencing Commission and a former Assistant Counsel in the Office of the Legislative Counsel of the U.S. House of Representatives. J.D., 1993, UCLA School of Law; B.A., 1989, Cornell University. These remarks were originally presented as a speech at the 2011 Allen Chair Symposium—“Everything But the Merits” presented by the University of Richmond Law Review
Robert S. Claiborne
Virginia’s challenges to the Patient Protection and Affordable Care Act (“ACA”), via its minimum essential coverage provision, or individual mandate, have drawn both criticism and praise as modern invocations of nullification. The distinct doctrine of nullification entails a legal process exceeding that of a merely litigious challenge to federal law or a vocal protest from a state legislature. Its exercise by a state purportedly renders a targeted federal law unconstitutional and thus null, void, and of no effect within the respective state’s borders. At nullification’s core are the premises that the Supreme Court does not have final authority to interpret the Constitution in cases and controversies arising between a state and the federal government and that an individual state, as a party to the Constitution, has ultimate authority to interpret the compact as applied to constitutional disputes arising with the federal government.
Continue reading.
Robert J. Reinstein *
The Washington administration has attracted increased attention in the ongoing debate over the power of the President to determine and conduct the nation’s foreign policy. The actions of the first President are being seen as important precedents on the scope of executive power, much as the statutes of the first Congress are recognized as being important precedents on the scope of legislative power.
This article provides revisionist answers to three key questions concerning the Washington administration’s assumption of authority in foreign policy: What constitutional source of power did the administration actually rely upon? How did its jurisprudential understanding of the law of nations affect the exercise of executive power? And does the experience of the Washington administration demonstrate the limits of originalism as a constitutional methodology?
Continue reading.
* Clifford Scott Green Professor of Law, Temple University Beasley School of Law. J.D., 1968, Harvard University School of Law; B.S., 1965, Cornell University.
