Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman
Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman
All Faculty Scholarship
The Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance. The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. By a vote of 7-2, the Court struck down this provision as an impermissible condition on …
Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii
Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii
All Faculty Scholarship
This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism …