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A One-Way Ticket

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. TJ says:

    By itself, the fact that the law is unique doesn’t make a ruling striking it down a “one way” ticket. Marbury v. Madison struck down a single law, but we wouldn’t call it a one-way ticket. Rather, I would think a one-way ticket is something more like Bush v. Gore, where the court is trying to limit the prospective effect of its holding.

    The way that would happen here is if the Court issues an incredibly narrow holding that will be easy to circumvent in the future (e.g. by simply adding some “findings of fact” or simply reciting an interstate commerce nexus), where a cynic would imagine that the Court is only trying to hand the Republicans a political victory. But a holding that says “no federal mandates, ever” is not a good-for-one-ride ticket even if it only currently affects one law.

  2. Brett Bellmore says:

    No, I would not say it’s designed to stop just one law. It’s also designed to stop all the laws that would follow that one law, should it be approved of by the Supreme court.

    If the Court decides that Congress can regulate inactivity, Congress WILL regulate inactivity. And it won’t just be one law we’re faced with. This may be Congress’ first attempt to expand it’s power in this direction, but if the attempt is successful they won’t stop here.

  3. Shag from Brookline says:

    I’m surprised that Brett did not cite Plessy v. Ferguson in support of his view. As for “inactivity,” Brett continues its demon-stration with his insufferable suffering from “Wick-burn.” A little balm provided by ACA (aka “Obama Cares”) may provide a cure for Brett.

  4. BDG says:

    Of course,the claim that the ACA is unique in penalizing inactivity is ridiculous, given the vast array of existing provisions that impose higher costs on those who fail to heed the government’s preferences. (E.g., if you don’t donate to charity, you will pay higher taxes this year.) So kind of a moot point.

  5. Bill Reynolds says:

    Like cases must be decided in like fahion. “Enough is enough” is not a principled distinction. Rather, there must be a reason given why activity can be differentiated from inactivity, and that reason must relate to the justification upholding the activity cases. if that is not done, then treating the two differently is unprincipled. (And I do not see how the two can be ditinguished.)

  6. Brett Bellmore says:

    “(E.g., if you don’t donate to charity, you will pay higher taxes this year.)”

    If they’d increased taxes generally, and then provided a tax break for those who bought insurance, they might have gotten away with it. Instead they wrote into the law an explicit penalty.

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