In this second of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone comment on the standing issue presented in California v. Texas. The authors explore the Solicitor General’s creative argument and argue that the argument leaves several hurdles unaddressed. The authors point out that even if the plaintiffs in these cases can overcome the hurdles, the Court should consider that embracing the Solicitor General’s broad new theory would open the door to other, even more aggressive, applications.
In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.
Illinois law dean and professor Vikram David Amar reflects on three writings by the late Justice Ruth Bader Ginsburg that he finds himself most drawn to. Amar describes these writings as addressing ideas central to our form of democratic government, namely popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation.
Illinois law dean and professor Vikram David Amar comments on some of the questions commentators and analysts are, or will soon be, asking—specifically why we have bar exams for legal licensure, and, assuming we retain them, what they should look like going forward. Amar observes the limitations of the so-called diploma privilege advocated by some and suggests that states adopt greater interstate uniformity in their bar exams, shift toward more performance (as opposed to memorization) exams, and move away from being so time pressured.
Illinois law dean and professor Vikram David Amar comments on a recent decision by a divided three-judge panel of the Fifth Circuit holding that a Texas vote-by-mail law that prefers people who are 65 or older does not violate the Twenty-Sixth Amendment of the federal Constitution. Amar explains why the decision is “deeply misguided” and runs counter to the clear words of the Constitution.
In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.
In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.
Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.
Illinois Law dean and professor Vikram David Amar comments on the recent dispute over the U.S. Attorney for the Southern District of New York and explains what President Trump and Attorney General Barr could have done to avoid the problem altogether. Amar describes a process that, if followed, could have allowed the administration to appoint their first-choice candidate without causing the controversy in which it now finds itself.
Illinois law dean Vikram David Amar explains why it is unconstitutional for state bars to favor in-state law schools when deciding who may sit for the state bar exam while complying with social distancing requirements, based on the Supreme Court’s precedents on the dormant Commerce Clause.
Illinois Law dean Vikram David Amar and UC Davis emeritus professor Alan E. Brownstein comment on a case before the U.S. Supreme Court that raises the question whether a religiously neutral student-aid program in Montana that affords students the choice of attending religious schools violates the religion clauses or the Equal Protection Clause of the U.S. Constitution. Amar and Brownstein express no opinion as to whether the courts’ often-expressed concerns about striking down invidiously motivated laws can be effectively overcome, but they contend that jurists who reject invalidating invidiously motivated laws must explain why reasons sufficient in other contexts are not persuasive in this case.
Illinois Law dean Vikram David Amar and professor Jason Mazzone assess President Trump’s suggestion that federal aid to state and local governments might be conditioned on their willingness to abandon their “sanctuary” policies and assist the federal government in immigration enforcement. Although Amar and Mazzone expect those federal spending conditions not to be realized, they use the President’s comment to list and describe some unanswered fundamental constitutional questions in the conditional spending arena.
Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on the U.S. Supreme Court’s recent per curiam decision staying an injunction by a federal district court in Wisconsin, effectively allowing the election in that state to go forward on with the normal timeline for casting ballots in place, despite concerns over the effects of COVID-19. Amar and Mazzone argue that, while the outcome might have been unjust, the plaintiffs in that case likely did not allege a constitutional violation and thus did not properly allege claims suitable to be remedied in federal court.
Illinois Law dean and professor Vikram David Amar comments on language in a recent U.S. Supreme Court decision, Allen v. Cooperdiscussing constitutional stare decisis in the context of state sovereign immunity. Amar points out some of the problems with the Court’s jurisprudence on state sovereign immunity and Congress’s Section 5 power, and he questions the Allen majority’s embrace of a “special justification” requirement for constitutional stare decisis.
Illinois Law dean and professor Vikram David Amar explains how the current crisis caused by the novel coronavirus reveals flaws in both America’s public health system and also in the country’s constitutional doctrines. Responding in part to Professor Michael C. Dorf’s column of March 15 urging uniform federal restrictions, Amar expresses doubt as to whether Congress’s powers under Article I of the Constitution permit imposition of such a lockdown in the first place.
Illinois Law dean Vikram David Amar and Schiff Hardin writing coach Julie S. Schrager explain the importance of incorporating “soft skills”—rooted in emotional intelligence and viewing your writing from your reader’s perspective—into legal writing. Amar and Schrager offer four key tips to help legal writers, whether first-year law students or seasoned attorneys, become more effective communicators.
Illinois Law dean and professor Vikram David Amar explains why a local government cannot constitutionally create policy discriminating against entities that do business with the feds. Specifically, Amar discusses a situation in which the city of Farland, California, is trying to prevent a privately operated state prison facility located in that city from contracting with Immigration and Customs Enforcement (ICE).
Illinois Law dean and professor Vikram David Amar comments on a recent decision by the U.S. Court of Appeals for the Second Circuit regarding so-called “sanctuary” jurisdictions. Amar argues that while the Second Circuit may have arrived at the correct conclusion of law, it also misunderstood the Supreme Court’s decision in NFIB v. Sebelius, in which the Court struck down the “Medicare expansion” provision of the Affordable Care Act as unconstitutionally coercive. Amar points out that in Sebelius, the Court found the fact that the Medicare expansion provision of the ACA vitiated the terms of a preexisting deal was sufficient to hold that provision coercive.
Illinois law dean and professor Vikram David Amar comments on the controversy surrounding President Trump’s tweets about the sentencing of Roger Stone, addressing the important differences between norms and legal rules. Amar points out that the motive underlying such presidential decisions is ultimately what determines whether the action is improper—and that such motives are notoriously difficult to establish.
Illinois law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker discuss Harvard Law professor Alan Dershowitz’s explanation of why he stands (virtually) alone in his views on impeachment—that all the scholars who disagree with him are biased partisans. Amar and Caminker explain why this claim is so insidious, with effects lasting well beyond the span of the current presidency.