Congratulations to Ken Cuccinelli, VA’s New AG, and George Mason #1 Alum!

I would like to extend a hearty congratulations to Kenn Cucinelli on his victory as the next Attorney General of the Commonwealth of Virginia.

General Cuccinelli is a staunch defender of liberty, the Constitution, and the rule of law, and makes everyone at Mason proud!

Ken fought a hard race against two qualified candidates during the Republican primary, and came out on top. We hosted all three candidates at a debate at Mason Law last March.

Here are the final results.

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FedSoc Debate: Chemerinsky v. Rivkin on Constitutionality of Individual Health Care Mandates

The Federalist Society is hosting an online debate between Dean Chemerinsky and David Rivkin.

Cheremsinsky’s argument, in a nutshell:

The constitutional objection that I have heard most often is that Congress lacks the authority under Article I of the Constitution to do this. But such a mandate clearly falls within the scope of Congress’s authority to regulate commerce among the states.

Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce. Purchasing health insurance is an economic transaction. Taken cumulatively those who do this, or who don’t do it, have a substantial effect on interstate commerce.

Rivkin counters:

There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all. It regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.

The cases cited by Professor Chemerinsky – Wickard v. Filburn and Gonzales v. Raich – do not support his position. In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana. The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities, especially since Congress sought to regulate them as a part of a comprehensive inter-state regulatory scheme.

Rivkin’s argument is a stretch, though it is a bit refined from some of his previous arguments.  Ann Althouse made a similar point. It is more likely will find that mandating a person to do something is different from regulating how a person does something. There is a distinction, but it may be without a difference.

 

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Fascinating Article: The Corporate Law Background of the Necessary and Proper Clause

From SSRN, The Corporate Law Background of the Necessary and Proper Clause (H/T Legal Theory Blog):

This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.

I find it amazing that no one has discovered this linkage before. Fascinating piece of scholarship. How does this affect an origiginalist inquiry:

And, of course, inferences from the corporate law background of the Necessary and Proper Clause say little, if anything, about interpretations not based on original understanding. These caveats notwithstanding, an understanding of the corporate law background provides perspective and adds texture to our understanding of this important provision

 

Chereminsky Finally Found Portion of Obamacare Unconstitutional; Christian healing sessions violates 1st Am.

For months, Dean Chemerinsky has been leading the fight, arguing that Obamacare is constitutional under the Commerce Power and the Spending Clause. But, he has finally found a provision he thinks is unconstitutional.

Backed by some of the most powerful members of the Senate, a little-noticed provision in the healthcare overhaul bill would require insurers to consider covering Christian Science prayer treatments as medical expenses.

The measure would put Christian Science prayer treatments — which substitute for or supplement medical treatments — on the same footing as clinical medicine. While not mentioning the church by name, it would prohibit discrimination against “religious and spiritual healthcare.”

Erwin Chemerinsky, dean of the UC Irvine School of Law, said the provision raised serious questions about government support of religion.

“I think when Congress mandates that health companies provide coverage for prayer, it has the effect of the government advancing religion,” he said.

Admittedly, establishment clause jurisprudence is an absolute mess. But, I doubt anyone would be able to find standing to challenge this. Even if standing was found, this is a really weak case for an establishment clause violation. Now this kind seems a bit opportunistic. The entire bill is constitutional, except for a tiny provision that gives churches some money for healing rituals.

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Go Vote! Unless it is rational for you not vote. Ignorance can be rational. But is it moral?

This morning, while on my ways to the polls, I tweeted “Go Vote! Unless it is rational for you not vote. Ignorance can be rational.”

A Professor whom I deeply respect replied:

Unless all candidates are equally evil, I see no moral justification in not voting.

That is a fantastic point. Often, in the pursuit for rationality and economic efficiency, morality takes a back seat. Rationality does not always line up neatly with morality. While it may be moral to help a a person in need, it is not always rational to do so. While it may be moral to exercise your civic responsibility and vote, it is seldom rational. The time, effort, and knowledge required to cast a vote, even an uninformed vote, are costs. The benefit to be expected from these costs are minimal. Thus, it is hardly rational to vote. I vote because I enjoy exercising my civic responsibility and participating in a representative democracy, but I have no false allusions that my single vote makes a difference.

A friend replied:

Josh, aren’t you overlooking in your equation of rationality that shirking moral obligation has costs (albeit not easily quantifiable) as well?

This comment speaks in my language. Shirking moral obligations certainly will have a negative externality on society. As more and more people remain ignorant, abstain from voting, and distance themselves from the political process, our Representative Republic will weaken. So in that sense, on the aggregate, it is rational for society to vote.

But, in economics, only individuals choose. There is a significant collective action problem here. According to Coase, one way to eliminate these problem is to assign property rights.

In a Representative republic, the property rights should take the form of responsive government. But in a Nation as large as ours, that responsiveness just isn’t there. While the responsiveness exists at the local level, there just isn’t that much authority local governments have anymore, as most important decisions are made in Washington.

So, to the individual, it is still rational not to vote.

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Puff Daddy Reminds You, Vote or Die!

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For Write In Ballots, Vote For John Galt, And Force The Vote Counter To Ask, “Who is John Galt”?

Whenever someone runs unopposed, I will not vote for them. Hence, I wrote in John Galt. And thus, I will force a vote counter, somewhere, to ask himself or herself, “Who is John Galt?” Apologies for the blurry blackberry picture.

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