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Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings
Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings
Marquette Elder's Advisor
The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well-established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post- Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, labeled the “Sebelius Theory.” The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the government …
Second Amendment Decision Rules, Non-Lethal Weapons, And Self-Defense, A.J. Peterman
Second Amendment Decision Rules, Non-Lethal Weapons, And Self-Defense, A.J. Peterman
Marquette Law Review
General public debate about the Second Amendment has focused almost exclusively on the regulation of firearms. After Heller and McDonald, the scope of the Second Amendment’s protection has been hotly contested. One area of the Second Amendment that has been less discussed is the decisional rules that would govern non-firearms and levels of protection based on location. This Comment proposes two Second Amendment Constitutional decisional rules. Broadly, this Comment suggests that the “common use” test for “arms” should be modified for the development of new arms, such as non-lethal weapons, that are subject to the Second Amendment. The proposed …
Reviving Legislative Generality, Evan C. Zoldan
Reviving Legislative Generality, Evan C. Zoldan
Marquette Law Review
The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to a variety of social harms, including corruption and the exacerbation of social inequality. But the Court’s weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that …