A Theory to Crush Conservative Jurisprudence

"Einer Elhauge of Harvard Law School, for example, pointed out that the Founders had explicitly endorsed the concept of a health care mandate when the first Congress passed legislation in 1790 requiring shipowners to buy health insurance for their sailors. This law was signed by President George Washington. Taking a different angle, Jack Balkin of Yale Law School argued that the mandate is clearly authorized by Article I, Section 8, of the Constitution, which permits Congress to “lay and collect taxes.” Rather than getting tangled in the wonky particulars of exactly when individuals enter the health care market, these scholars were locating a justification for the law in the text of the Constitution and the historical understanding of the men who wrote and ratified it."

-Jeffrey Rosen, “Constitution Avenue

First immigration, now health care: Did the federal government screw up its arguments before the Supreme Court again?

"In fact, however, as he did in the health care case, Verrilli again failed to make the most convincing constitutional argument in support of his position. The argument that the government should have offered in the immigration case closely resembles the one it failed to offer in the health care case. In the immigration case, the argument goes something like this: The Framers of the Constitution intended to transfer power over foreign relations from the individual states to the federal government. The federal government uses its immigration powers—including the power to welcome, expel, detain, and place conditions on aliens—as an instrument of foreign policy. State laws like Arizona’s SB 1070 undermine the uniformity of federal foreign relations policy and can harm relations with foreign countries by inviting retaliation against U.S. citizens abroad.”

- Jeffrey Rosen, First Health Care, Now Immigration: How the Government Fumbled Its Latest Supreme Court Case

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How does the federal government’s suit against book publishers demonstrate the bankruptcy of our antitrust laws?

"The first thing to be said about the lawsuit filed last week by the Justice Department against Apple and five book publishers is that the defendants very well may be guilty. There does seem to have been collusion among them to fix the price of e-books. But even if the book publishers’ actions were illegal, that’s not to suggest what they did wasn’t understandable. Indeed, there’s a plausible case to be made that the actions of the publishers actually amounted to combating an abusive monopoly—namely, Amazon. The Justice department may be acting correctly under existing antitrust law by suing Apple—but, in that way, the case only highlights why the laws in question are in desperate need of an overhaul.”

- Jeffrey Rosen, How the Obama Administration’s Suit Against Book Publishers Proves the Bankruptcy of Our Antitrust Laws

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