Wednesday, October 6, 2010

Kerr and Somin debating the doctrine

Two members of the Volokh Conspiracy -- Orin Kerr (George Washington University Law School) and Ilya Somin (George Mason University School of Law) -- are today discussing the doctrinal contours of Congress's enumerated powers as it applies to the minimum coverage requirement. Somin, you may recall, is the author of the amicus brief on behalf of the Washington Legal Foundation (and a sizable group of law professors). You can find Somin's posts here and here. Kerr's thoughts are here. Their discussion hones in on what is likely the most important questions concerning the constitutionality of ACA 1501(b): Will the Supreme Court permit Congress to regulate conduct that is arguably non-economic, and arguably not even activity, as a necessary (or "appropriate") means to implementing its broader scheme to regulate the (plainly commercial) health insurance market?