Ilya Somin discusses at Liberty Law Talk his book The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain. The book provides in part a fascinating account of the plight of the New London homeowners who challenged their city's attempt to seize through eminent domain their homes for use in private development. In addition, Somin gives us a serious study of the eminent domain power, and he discusses why we need to reclaim a more restricted understanding of its legitimate use as opposed to the private to private takings blessed by the Court in Kelo and…
Last year’s Supreme Court decision on the constitutionality of the Affordable Care Act was one of the most controversial cases in American history. In NFIB v. Sebelius, a narrow 5-4 ruling, the Court upheld the ACA’s individual health insurance mandate on the grounds that it was a constitutionally permissible tax, but rejected the federal government’s central arguments in defense of the mandate: the claim that it was authorized by Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The mandate, which requires most Americans to purchase government-approved health insurance by 2014, was the central focus of challenges to the constitutionality of “Obamacare” mounted by 28 state governments and numerous private parties.
Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions.
Ilya Somin reconsiders federalism and the protection of individual freedoms.
In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”
The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty.
Bond arose out of a tragic domestic situation. Philadelphia resident Carol Anne Bond discovered that a close friend of hers was pregnant, and that Bond’s husband was the father. In an effort to get revenge on this woman, Bond allegedly placed dangerous chemicals in areas the other woman was likely to touch, with the result that the latter got a burn on her hand. Prosecutors charged Bond with violating a federal law that forbids the use of chemicals that can cause death or serious injury to persons or animals, except for a “peaceful purpose.” Bond’s lawyers contended that this law is unconstitutional because it violates the Tenth Amendment, which holds that “the powers not delegated” to the federal government by “the Constitution” are “reserved to the States… or to the people.” Only states, Bond argued, have the authority to regulate criminal behavior of this type.
The federal government claimed that Bond is not allowed to raise this argument because the Tenth Amendment’s constraints on the scope of congressional power are intended to protect state governments, not individual citizens. The Supreme Court, as we have seen, decided otherwise because federalism protects individual freedom as well as state sovereignty.