Welcome to Our New Coblogger, Josh Blackman

I'm delighted to report that Prof. Josh Blackman of the South Texas College of Law will be joining our blog. Josh teaches, writes, and litigates about constitutional law; he has been extensively involved in debates about Obamacare, the Emoluments Clause, 3D-printed guns, DAPA, the proposed ABA speech code for lawyers (Rule 8.4(g)), and much more. He has written many law review articles and four books, two of them with our own Randy Barnett: Constitutional Law: Cases in Context (3d ed.) and An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. He has also guest-blogged often with us here, as well as writing his own blog, JoshBlackman.com, so many of you may know him from that. We very much look forward to having him with us!

Comments

[bacchys]

How does one log a cob, and why?

Welcome. I look forward to reading him.

[Krayt]

There's an emporium somewhere along the Family Truckster route out west, near giant balls of twine and Babe the Blue Ox, made of corn cobs. Perhaps they know of what the post speaks.

[[Eugene Volokh] Welcome to Our New Coblogger, Josh Blackman – Jehtro Lewis – Blog]

[…] from Law https://reason.com/2019/07/21/welcome-to-our-new-coblogger-josh-blackman/ […]

[Kazinski]

Excellent.

My condolences to the reverend.

[FlameCCT]

AK (Arse Kisser) may need to update his blood pressure meds again!

[Rev. Arthur L. Kirkland]

Nothing particularly noteworthy here.

White.

Male.

Law professor.

On the wrong side of history.

A casualty of the culture war.

A movement conservative and Republican, not a libertarian.

Not merely a natural fit but likely inevitable.

[Patrick Henry, the 2nd]

Sorry buddy, but WRONG AGAIN.

He’s on the “right” side of history.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Welcome, welcome!

[TwelveInchPianist]

I can't seem to comment on his first post, but it doesn't make sense. If a person is subject to the mandate, then of course there is an injury. But if a person believes that they are not subject to the mandate because it is outside the scope of Congress's power, and they will not be subject to a penalty if they decline to purchase insurance, then there is no justiciable case or controversy, the party can obtain the relief he wishes himself.

A better argument is that people injured by the other provisions, such as guaranteed issue, have standing.

[ReaderY]

Welcome!

Comments on your first post, regarding standing in the current ACA constitutional challenge case, seem to be turned off.

So I’ll post a comment here.

On the merits, I think the fundamental problem with the challenge is that it assumes binary logic. If there are only two possibilities, A and B, then negating A necessarily proves B.

But real logic is often non-binary, and this often the case in law. And it is the case here.

In the Sebelius case, an act of Congress required people to pay something. So the court had to decide how to characterize the payment. Is it a tax or is it a penalty?

In the current case, there is no requirement to pay. So neither category in the Sebellius case applies. If you don’t have to pay, you are subject to neither a tax nor a penalty. The law has to classified instead as belonging to a third category, something distinct from the other two. The original question, which only concerned obligations to pay, is simply no longer relevant.

I can certainly understand zealous plaintiffs failing to see this and thereby arguing that since the ACA no longer contains a tax, it must instead pay a penalty. What I have difficulty with is the sight of federal judges buying this argument.

Binary logic is a sign of combativeness, of the mentality of people who use victory in debate rather than exploratory discussion as their way to understand the world. It is very understandable in lawyers.

But judges are supposed to be different. This is the sort of obvious logical flaw that judges, who are supposed to be neutral arbiters rather than combatants for causes, are supposed to be able to see through.

[Patrick Henry, the 2nd]

Welcome! I’ve been an avid follower of yours, so great to see you here too!!