Laurence Silberman

If you haven't already, please read what Henry Paul Monaghan has to say about the lawsuits challenging the Affordable Care Act. Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia.

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In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention.

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Everybody calm down. And when I say everybody, I include myself. Tuesday’s oral argument at the Supreme Court was not the finest hour for health care reform, for the philosophy of activist government, or for Solicitor General Don Verrilli. But oral arguments don’t typically change the outcome of cases. They are important primarily for the signals they send about the justices’ thinking.

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Next week the Supreme Court hears oral arguments in the lawsuits challenging the Affordable Care Act. But is it really the “case of the century,” as pundits have started calling it? It’s difficult to say without knowing the outcome. Presently that distinction belongs to Bush v. Gore, a decision that may have truly altered history. Just think how the years after 2001 would have unfolded if Al Gore had been president. But Bush v. Gore didn’t change constitutional doctrine.

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No Objection

Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones. But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C.

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[with contributions from Matt O'Brien and Darius Tahir]  Five and a half hours -- that's the time Supreme Court justices have set aside for oral arguments in the lawsuits against the Affordable Care Act. And you'll forgive me if I find that a little unsettling. As readers of this space know, I've long believed that the law's individual mandate is constitutional. Yes, the Supreme Court could reach a different conclusion. The justices can say pretty much whatever they want.

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Editor's Note: This article has been updated to reflect the Supreme Court's announcement that it would hear a case challenging the constitutionality of the Affordable Care Act. As President Obama’s Patient Protection and Affordable Care Act has wound its way through the justice system, courts have split on the issue of whether the Act passes constitutional muster. On Monday, the Supreme Court announced that it would resolve the matter once and for all, agreeing to hear a challenge to the law that would set the stage for a ruling that will likely come in the middle of the 2012 election campaig

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The D.C. Circuit Court of Appeals just issued a decision in the lawsuit against the Affordable Care Act. It looks like a big win for the administration—and, more importantly, for health care reform. I'll have more to say on this later, after I've read the decision more carefully.  But I'll share two quick observations. The first is the author of the majority opinion: Judge Laurence Silberman, a Reagan appointee and conservative judge. He's now the second well-known, well-regarded conservative jurist at the Circuit level to uphold the law.

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Second Thoughts

Benjamin Wittes: Do the gun nuts have a point?

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