In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they […]
Archive | Necessary and Proper
New Books on the Obamacare Case
By Ilya Somin on August 12, 2013 11:40 am in Commerce Clause, Health Care, Individual Mandate, Necessary and Proper
A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been […]
The First Anniversary of the Obamacare Decision
By Ilya Somin on June 28, 2013 1:30 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper, Spending Clause, Taxing and Spending Clause
Today is the first anniversary of NFIB v. Sebelius, the Supreme Court’s controversial decision in the Obamacare case. It is still too soon for us to fully appreciate the long-term impact of the ruling. We are also still far from reaching any kind of consensus about the correctness of the Court’s decision. For the moment, […]
United States v. Kebodeaux and Congressional Power under the Necessary and Proper Clause
Amidst the hoopla surrounding Fisher v. University of Texas, most people probably missed today’s other potentially significant Supreme Court decision: United States v. Kebodeaux, which deals with Congress powers under the Necessary and Proper Clause. Trevor Burrus of the Cato Institute (who assisted in the preparation of an amicus brief I coauthored on Cato’s behalf […]
The Health Care Case: The Supreme Court’s Decision and its Implications – Now Available for Pre-ordering
By Ilya Somin on May 2, 2013 11:30 am in Federalism, Health Care, Individual Mandate, Necessary and Proper
The Health Care Case: The Supreme Court’s Decision and its Implications – A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays […]
Why maximal enforcement of federal gun laws is not always a good idea
By David Kopel on April 26, 2013 4:27 am in Commerce Clause, Congress, Constitutional Law, Criminal Law, Federalism, Guns, Immigration, Necessary and Proper, Supreme Court, War on Drugs
A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate: The Manchin-Toomey amendment was supported […]
My Review of Einer Elhauge’s Obamacare on Trial
By Ilya Somin on March 11, 2013 4:45 pm in Commerce Clause, Federalism, Health Care, Individual Mandate, Necessary and Proper
The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some […]
Comstock, Bond and Predictions About the Individual Mandate Case
By Ilya Somin on February 22, 2013 11:54 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
In his recent response to Randy Barnett, co-blogger Orin Kerr argues that previous precedent, especially the Supreme Court’s 2010 decision in United States v. Comstock justifiably led many observers to expect that the Court would readily uphold the individual health insurance mandate, and that its failure to do so under the Commerce and Necessary and […]
Foreign Commerce Authority for Universal Jurisdiction over Terrorists
By Eugene Kontorovich on January 9, 2013 8:00 am in Alien Tort Statute, Constitutional Law, Counter-Terrorism Policy, Criminal Law, International Law, National Security, Necessary and Proper, Terrorism, Uncategorized, War and Armed Conflict, War on Terror
The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war. The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I […]
Turning Federalism Right-Side Up – My Review of Michael Greve’s The Upside-Down Constitution
By Ilya Somin on December 11, 2012 10:45 am in Commerce Clause, Constitutional Law, Constitutional Theory, Federalism, Necessary and Proper, Taxing and Spending Clause
My review of Michael Greve’s important new book, The Upside-Down Constitution is about to be published in Constitutional Commentary, and is now available on SSRN. Here is the abstract: Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the […]
Michael Greve on the Proper Meaning of “Proper” in the Necessary and Proper Clause
By Ilya Somin on November 5, 2012 8:00 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
At the Law and Liberty Blog, my George Mason colleague Michael Greve has posted an insightful commentary on my forthcoming article analyzing the proper meaning of “proper.” Michael agrees with my conclusion that the individual health insurance mandate was improper, but takes issue with some of my reasoning: My colleague Ilya Somin has penned a […]
My Forthcoming Article on the Individual Mandate and the Meaning of “Proper” in the Necessary and Proper Clause
By Ilya Somin on October 29, 2012 1:40 pm in Federalism, Health Care, Individual Mandate, Necessary and Proper
My forthcoming book chapter, “The Individual Mandate and the Proper Meaning of ‘Proper,’” is now available on SSRN. It is forthcoming in The Health Care Cases, edited by Gillian Metzger, Trevor Morrison, and Nathaniel Persily, eds. (Oxford University Press). The book is a collection of essays on NFIB v. Sebelius, the case where the Court […]
Ninth Circuit Treats Supreme Court Individual Mandate Necessary and Proper Clause Ruling as a Binding Precedent
Co-blogger Jonathan Adler recently posted on United States v. Elk Shoulder, a recent Ninth Circuit decision which may be the first court of appeals case interepreting the Supreme Court’s individual health insurance mandate decision in NFIB v. Sebelius. When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more
By David Kopel on June 29, 2012 5:46 pm in Constitutional History, Constitutional Law, Necessary and Proper, Originalism
Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from […]