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Individual Mandate Struck Down

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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5 Responses

  1. Howard Wasserman says:

    Any chance the Court will wait to see if any of these courts take the case en banc?

  2. Joe says:

    “Any chance the Court will wait to see if any of these courts take the case en banc?”

    I think there is a plausible story to tell whereby the Court finds some way of pushing the matter past the 2012 elections. I think that a variety of Justices would love for a Republican Congress and President to repeal the mandate provision without having to opine on the issue. (Kennedy for fear of it becoming another Bush v. Gore; Scalia and Alito because they’d have to backtrack on prior Commerce Clause and N&P jurisdprudence.)

  3. Brett Bellmore says:

    “Scalia and Alito because they’d have to backtrack on prior Commerce Clause and N&P jurisdprudence.”

    Not if they run with the activity/inactivity distinction we were assured was so out of the mainstream that people raising it should be sanctioned for bringing a frivolous case. It seems to be the basis on which the court ruled, and it does NOT contradict any existing Supreme court precedent.

  4. Jackson Pollack says:

    It seems to be the basis on which the court ruled

    Actually, the majority rejected that distinction as unworkable.

  5. Brett Bellmore says:

    And then proceeded to use it anyway;

    “Thus, even assuming that decisions not to buy insurance substantially affect interstate commerce, that fact alone hardly renders them a suitable subject for regulation.”

    What is the difference between a decision to do X, and a decision not to do X, if not an activity/inactivity distinction?

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