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Somin: Need for Restraints on Government Authority

"Ultimately, a free society must guard against threats to liberty from all levels of government. That requires imposing constraints on both state and federal authority," concludes Professor Ilya Somin in an op-ed appearing in The Library of Law and Liberty.

Somin cites Bond v. United States, a recent unanimous Supreme Court ruling, which emphasizes that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. "In addition to setting boundaries 'between different institutions of government for their own integrity,' constitutional federalism also 'secures to citizens the liberties that derive from the diffusion of sovereign power,'" says Somin.

Somin believes Bond has relevance in arguments surrounding the mandate for individual healthcare and suggests the Court will not uphold the mandate unless it concludes there is some way of doing so without giving Congress unconstrained power to impose mandates.

Bond, Federalism, and Freedom, The Library of Law and Liberty, December 28, 2011. By Ilya Somin.
Excerpt:
"Bond has some important potential ramifications for the Obama health care plan individual mandate case. Twenty-eight state governments and numerous private parties have filed lawsuits challenging the constitutionality of the Obama health care plan provision requiring most Americans to purchase government-approved health insurance by 2014. Lower courts have split over the issue of whether or not the mandate exceeds the scope of federal power under the Constitution. Many defenders of the mandate claim that the plaintiffs aren’t making a “real” federalism argument against the law, but are actually trying to protect individual liberty under the guise of promoting federalism. Bond shows that this is a false dichotomy. A federalism-based limitation on congressional power can protect individual liberty as well as the authority of state governments. If the federal government’s power to impose mandates is limited, that both protects individual freedom and gives state governments greater scope to determine their own health care policies."

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