Constitutional Law Commons^™

Improving Access To Justice: Plain Language Family Law Court Forms In Washington State, Charles R. Dyer, Joan E. Fairbanks, M. Lynn Greiner, Kirsten Barron, Janet L. Skreen, Josefina Cerrillo-Ramirez, Andrew Lee, Bill Hinsee

Seattle Journal for Social Justice

No abstract provided.

Congress' Encroachment On The President's Power In Indian Law And Its Effect On Executive-Order Reservations, Mark R. Carter Jd, Phd

Seattle Journal for Social Justice

No abstract provided.

Delegation And The Destruction Of American Liberties: The Affordable Care Act And The Contraception Mandate, Michael Barone, Jr.

Touro Law Review

No abstract provided.

Speech As A Weapon: Planned Parenthood V. American Coalition Of Life Activists And The Need For A Reasonable Listener Standard, Alex J. Berkman

Touro Law Review

No abstract provided.

Let Ivf Take Its Course: Reconceiving Procreative Liberty For The Twenty-First Century, Christine E. White

Student Articles and Papers

No abstract provided.

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Hierarchies Of Discrimination In Baby Making: A Response To Professor Carroll, Radhika Rao

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

How Parents Are Made: A Response To Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Kimberly M. Mutcherson

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

The Federal Medical Loss Ratio: A Permissible Federal Regulation Or An Encroachment On State Power?, Meghan S. Stubblebine

William & Mary Law Review

No abstract provided.

Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky

West Virginia Law Review

The legal status of medical marijuana in the United States is something of a paradox. On one hand, the federal government has placed a ban on the drug with no exceptions. On the other hand, forty percent of states have legal- ized its cultivation, distribution, and consumption for medical purposes. As such, medical marijuana activity is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented, nebulous zone of legality in which an activity is both legal and illegal, what …

Not The Power To Destroy: An Effects Theory Of The Tax Power, Robert D. Cooter, Neil S. Siegel

Faculty Scholarship

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and …

Finding A Positive Right To Healthcare, Nicole Huberfeld

Law Faculty Popular Media

In this blog post, Professor Nicole Huberfeld provides a review of Edward Rubin's article The Affordable Care Act, The Constitutional Meaning of Statutes, and the Emerging Doctrine of Positive Constitutional Rights, 53 Wm. & Mary L. Rev. 1639 (2012).

Defining Fetal Life: An Establishment Clause Analysis Of Religiously Motivated Informed Consent Provisions, Justin R. Olson

Indiana Law Journal

No abstract provided.

When Congress Practices Medicine: How Congressional Legislation Of Medical Judgment May Infringe A Fundamental Right, Shannon L. Pedersen

Touro Law Review

No abstract provided.

How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius …

If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger

Indiana Journal of Law and Social Equality

No abstract provided.

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

In this Essay, I offer a few thoughts in response to Jeffrey Rosen's contribution to this symposium on Jack Balkin's "Living Originalism". I will first focus on what he writes about the "new textualism." I will then reply to what he intimates about the continuing validity of Roe v. Wade. In short, I will argue that Rosen offers progressives little reason to accept the new textualism or to reject Roe in the name of legal fidelity.

If the abortion right is ultra vires because a lack of decisive warrant in text, structure, and history trumps mediating equality principles and legal …

The Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson

Pepperdine Law Review

In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). The ACA imposes a “shared responsibility requirement,” popularly known as the “Individual Mandate” (IM), which forces Americans to buy medical insurance or pay a “penalty.” The ACA’s text and legislative history, as well as the public defenses of it by President Obama and his supporters, consistently described the IM as a valid exercise of Congress’s power “[t]o regulate Commerce . . . among the several States.” This reliance on the Commerce …

Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

Managed Care Grievance Procedures: The Dilemma And The Cure , Joyce Krutick Craig

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Public Access To Physician And Attorney Disciplinary Proceedings, Michael Spake

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Special Populations: Mobilization For Change

Touro Law Review

This Article is based on a transcript of a break-out discussion which took place at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, Central Islip, New York, in March 2008. The discussion was moderated by Karen L. Nicolson, Michael Williams, and Toby Golick.

This Article assesses the needs of various special populations and the possible strategies and solutions to create change through enacting a civil right to counsel. The Article is intended to capture information and viewpoints of the people who participated in the break-out discussion …

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …

Let Them Eat . . . Broccoli?, Josie G. Richardson

University of Arkansas at Little Rock Law Review

No abstract provided.

The Patient Protection And Affordable Care Act: A Constitutional Analysis, David C. Jung

University of Arkansas at Little Rock Law Review

No abstract provided.

Avoiding The Unavoidable: The Canon Of Constitutional Avoidance As Applied To The Patient Protection And Affordable Care Act, T. J. Fosko

University of Arkansas at Little Rock Law Review

No abstract provided.

Breaking Down The Supreme Court’S Spending Clause Ruling In Nfib V. Sebelius: A Huge Blow To The Federal Government Or A Mere Bump In The Road?, Ellen K. Howard

University of Arkansas at Little Rock Law Review

No abstract provided.

Tackling The Global Ncd Crisis: Innovations In Law And Governance, Bryan P. Thomas, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries—representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, …

Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Roe v. Wade grounds constitutional protections for women’s decision wheth­er to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equal­ity arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …

Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles

Journal of the National Association of Administrative Law Judiciary

No abstract provided.