Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

United States

Faculty Scholarship

Constitutional Law

2011

Articles 1 - 3 of 3

Full-Text Articles in Law

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell Jan 2011

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a ...


Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First Jan 2011

Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First

Faculty Scholarship

Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related ...


Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel Jan 2011

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes—or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by ...