Judicial Capacity and the Conditional Spending Paradox
This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision-making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping off point, this examination yields three important payoffs: First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle -- a view the Article dubs the "conditional spending paradox." Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.
Federalism, Lochner, and the Individual Mandate
The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this objection flows most logically from the Due Process Clause of the Fifth Amendment, as a species of substantive due process. Opponents of the individual mandate, however, have framed their claims in terms of federalism, contending that Congress lacks power under Article I to regulate “inactivity.” But the libertarian objection has simply nothing to do with federalism - that is, a system for allocating power between the federal government and the states. Whether the object of regulation is passive or instead active tells us nothing about whether it is more properly regulated at the state or federal level. Incorporating a categorical libertarian limitation into federalism doctrine, moreover, would limit federal authority even when the government’s interests in regulation are compelling, and even when the states are simply unable, because of collective action problems, to address a problem of national scope and importance. Smuggling a libertarian-based limitation into constitutional law by concealing it in the garb of federalism can only deepen the suspicions of those who are already inclined to view arguments about federalism as simply a guise for some other policy agenda. If opponents of the individual mandate wish to raise a libertarian objection, then they are free to do so; but they should do so in an intellectually coherent way, and they should be clear about the consequences - both for state and federal authority - that inevitably would follow.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.