What We Fret About When We Fret About Bootstrapping by Joseph Blocher :: SSRN

In his contribution to this symposium, Stuart Benjamin identifies, elaborates, and evaluates the intuition that there is something troubling about bootstrapping — the process by which an actor can, by doing Y, give itself the power to do Z. That intuition animates much of the opposition to the Patient Protection and Affordable Care Act (ACA). Benjamin argues convincingly that, however bootstrapping is defined, it is not the constitutional threat that some people have imagined it to be. As Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit explained in the course of rejecting a different argument against the constitutionality of the ACA, “Sometimes an intuition is just an intuition.”

In this short response, I attempt to join the projects that Benjamin has set for himself: first, identifying what people mean when they talk about bootstrapping; second, elaborating what people find troubling about that concept; and, finally, evaluating whether those concerns are justified. Although I agree with Benjamin almost completely, I try here to offer a few different points of emphasis, including more of a focus on the distinction between bootstraps and preconditions, four types of concerns regarding bootstrapping (those relating to aggrandizement, formalism, institutionalism, and transparency), and the relevance of the bootstrapper’s purpose.

via What We Fret About When We Fret About Bootstrapping by Joseph Blocher :: SSRN.

Mary Ann Glendon: Why the Bishops Are Suing the U.S. Government – WSJ.com

The main goal of the mandate is not, as HHS claimed, to protect women’s health. It is rather a move to conscript religious organizations into a political agenda, forcing them to facilitate and fund services that violate their beliefs, within their own institutions.

The media have implied all along that the dispute is mainly of concern to a Catholic minority with peculiar views about human sexuality. But religious leaders of all faiths have been quick to see that what is involved is a flagrant violation of religious freedom. That’s why former Arkansas Gov. Mike Huckabee, a Baptist minister, declared, “We’re all Catholics now.”

via Mary Ann Glendon: Why the Bishops Are Suing the U.S. Government – WSJ.com.

The Catholic Church has declared war on Obamacare. This could spell the end of Obama – Telegraph Blogs

Dolan points out that the Catholic Church’s various ministries “are jeopardized by the mandate – ministries to the poor, the sick, and the uneducated, to people of any faith or no faith at all.” His estimation of the size of the problem is no understatement. The Church has more than 200 universities (serving some 750,000 students), 6,980 Catholic elementary or secondary schools, 600 Catholic hospitals, and 1,400 Catholic long-term care centres. All of these will be affected by the mandate and there’s a risk that some or even all of them could close. The social effects would be felt well beyond the Church, creating electoral ripples that damage the Democrat brand for a generation.

via The Catholic Church has declared war on Obamacare. This could spell the end of Obama – Telegraph Blogs.

BREAKING: Cardinal Dolan of NY, Cardinal Wuerl of D.C., Notre Dame–And 40 Other Catholic Dioceses and Organizations–Sue Obama Administration | CNSNews.com

The Archdiocese of New York, headed by Cardinal Timothy Dolan, the Archdiocese of Washington, D.C., headed by Cardinal Donald Wuerl, the University of Notre Dame, and 40 other Catholic dioceses and organizations around the country announced on Monday that they are suing the Obama administration for violating their freedom of religion, which is guaranteed by the First Amendment to the Constitution.The dioceses and organizations, in different combinations, are filing 12 different lawsuits filed in federal courts around the country.

via BREAKING: Cardinal Dolan of NY, Cardinal Wuerl of D.C., Notre Dame–And 40 Other Catholic Dioceses and Organizations–Sue Obama Administration | CNSNews.com.

Federalism as a Safeguard of the Separation of Powers by Jessica Bulman-Pozen :: SSRN

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress’s faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with the federal executive about how to administer the law, they force attention back to the underlying statute: Contending that their view is consistent with Congress’s purposes, states compel the federal executive to respond in kind. States may also reinvigorate horizontal checks by calling on the courts or Congress as allies. Cooperative federalism schemes are a more practical means of checking federal executive power than many existing proposals because such schemes do not fight problems commentators emphasize — a vast administrative state, broad delegations, and polarized political parties — but rather harness these realities to serve separation of powers objectives.

via Federalism as a Safeguard of the Separation of Powers by Jessica Bulman-Pozen :: SSRN.

Supremely partisan – Opinion – The Boston Globe

But let’s be honest. The court has become partisan. The Rehnquist court elected George W. Bush because it was partisan. The Roberts court will likely do everything in its power to elect Mitt Romney, including overturning the D.C. appellate court on Citizens United, which has given corporations virtually unfettered license to contribute to the Republican Party or upholding state laws that result in voter suppression. And, by the way, if you really think his vote is in play on Obamacare, Justice Anthony Kennedy wrote the Citizens United opinion.

via Supremely partisan – Opinion – The Boston Globe.

Alan Blinder: Life, Liberty and the Pursuit of Insurance – WSJ.com

Health-care reform, the impossible dream that seemed to become a reality in 2010, is now in mortal danger. Republicans want to repeal it even though the federal law is patterned after a Massachusetts law that their apparent presidential nominee signed in 2006. They can’t do that, of course, unless they sweep the next election. So the clear and present danger comes from the Supreme Court, where a majority of justices seemed to snarl at the law in open session last month. Health-care reform is clearly in legal peril.

via Alan Blinder: Life, Liberty and the Pursuit of Insurance – WSJ.com.

Henry Paul Monaghan Backed Bork, Opposes Judicial Activism, And Thinks Obamacare’s Mandate Is Constitutional Given Existing Precedent. | The New Republic

If you’re keeping score, that’s five very prominent, very well-respected conservatives who have argued that the Affordable Care Act is constitutional. The other four are Charles Fried, Laurence Silberman, Jeffrey Sutton, and J. Harvie Wilkinson. Fried, a Harvard Law School professor, was solicitor general during the Reagan Administration. Wilkinson, a sitting federal judge, was on George W. Bush’s short list of potential nominees to the Court.

via Henry Paul Monaghan Backed Bork, Opposes Judicial Activism, And Thinks Obamacare’s Mandate Is Constitutional Given Existing Precedent. | The New Republic.

Henry Paul Monaghan: A Conservative Law Professor On The Obvious Constitutionality Of Obamacare | The New Republic

The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce … among the several States.”  The Court’s precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.

via Henry Paul Monaghan: A Conservative Law Professor On The Obvious Constitutionality Of Obamacare | The New Republic.

The individual mandate won’t save Obamacare – Health – AEI

For all the talk about the Affordable Care Act’s mandate to purchase insurance, you might think that the mandate is the linchpin of the entire law. It isn’t, at least from the standpoint of whether the insurance market will collapse without it. Even with the mandate, the ACA is likely to cause widespread and unnecessary disruption that will drive up the cost of insurance for the very people that the law is supposed to help.

via The individual mandate won’t save Obamacare – Health – AEI.