Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.
Justia columnist and U.C., Davis, law professor Vikram David Amar argues in favor of America’s adoption of the National Popular Vote (“NPV”) proposal. As Amar notes, California may soon adopt the proposal, and if it does so, that would be a major development in the movement towards a direct national popular election for the Presidency. The essential idea, he explains, is to get states that, together, possess a sufficient number of electoral votes to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who may have prevailed in that state, but rather for the candidate who won the most popular votes nationally. Amar points out that this idea could be put into effect without a constitutional amendment, considers the details of how the NPV proposal might work, addresses some possible criticisms, and notes that requiring Congressional approval for the proposal to take effect might be wise.
Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.
Justia columnist and U.C., Davis law professor Vikram Amar begins a two-part series on two important recent rulings by the U.S. Court of Appeals for the Sixth Circuit, both of which may end up before the Supreme Court. In this first column, Amar comments on the Sixth Circuit ruling that upheld Obamacare—citing a number of factors that make the decision noteworthy. These factors include a conservative judge's vote to uphold Obamacare; that same judge's use of broad reasoning in doing so; the fact that the dissenter was a district court judge; the decision's timing; and the arguments the two judges in the majority could have made, but declined to make, in support of the statute.