Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
The Ppaca In Wonderland, David B. Kopel, Gary Lawson
The Ppaca In Wonderland, David B. Kopel, Gary Lawson
David B Kopel
The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson
David B Kopel
In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
David B Kopel
The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.
Pretend “Gun-Free” School Zones: A Deadly Legal Fiction, David B. Kopel
Pretend “Gun-Free” School Zones: A Deadly Legal Fiction, David B. Kopel
David B Kopel
Most states issue permits to carry a concealed handgun for lawful protection to an applicant who is over 21 years of age, and who passes a fingerprint-based background check and a safety class. These permits allow the person to carry a concealed defensive handgun almost everywhere in the state. Should professors, school teachers, or adult college and graduate students who have such permits be allowed to carry firearms on campus? In the last two years, many state legislatures have debated the topic. School boards, regents, and administrators are likewise faced with decisions about whether to change campus firearms policies. The …