Law Commons^™

National Federation Of Independent Business V. Sebelius, Supreme Court Of The United States

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Law Faculty Articles and Essays

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts' incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and processbased methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed "semisubstantive review" and another theorized as "judicial manipulation of legislative …

The Ppaca In Wonderland, Gary S. Lawson, David Kopel

Faculty Scholarship

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 …

Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States …

Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States …

Congress, Public Values, And The Financing Of Private Choice, Mary L. Heen

Law Faculty Publications

This Article examines the financing dimension of private choice, with a focus on Congress’s taxing and spending decision-making processes. The Article begins with an overview of the financing and performance dimensions of privatization decisions, followed by an analysis of how taxation relates to both dimensions. Private choice can be financed individually, that is, paid for by an individual’s own resources, facilitated by general tax reduction. Alternatively, private choice can be financed collectively by using tax revenues (or borrowed funds) to pay for privately provided goods and services. The tendency in political debate to conflate those two forms of financing, as …

State And Local Taxation: When Will Congress Intervene?, Kathryn L. Moore

Law Faculty Scholarly Articles

This article examines congressional activity in the state and local tax area to determine when, if ever, Congress will enact legislation mandating uniformity in state and local taxation. The article begins by briefly describing our current system of state and local taxation and explaining why we need more uniformity therein.

The article then provides an empirical study of congressional activity in the state and local tax area between January, 1971 and May, 1996. Specifically, it focuses first on four discrete but representative areas in which Congress has enacted legislation regulating state and local taxation, and, second, on four discrete but …

The Powers Of Home Rule Cities In Colorado, Howard C. Klemme

Publications

No abstract provided.