For Thursday

Monday audio. Panel # 3 Reaction Papers, if any, are due to Donna Yff (yffd@fiu.edu) by noon on Tuesday, September 8.

We continue with Spending Clause (still Panel # 4). Why was relatedness satisfied in Dole--what was the government purpose and how did the condition further that purpose. Why was the Medicaid expansion in the ACA not valid and how can that be reconciled with Dole? What is the current scope of Congress' spending power after NFIB?

Consider two arguments from Justice Ginsburg's NFIB dissent: 1) Congress could have repealed all of Medicaid, then reenacted it as expanded and 2) Congress could have used the Spending power to create "single payer" universal health care, with a program akin to Social Security or Medicare, without needing complexities such as the individual mandate. Could it have done this, as a practical and political matter--why or why not? Should the practicalities matter to the constitutional analysis--if the best solution to a problem (Medicare-for-All) is not politically feasible, should Congress have more leeway to use the second-best solution if the alternative is leaving the problem unaddressed? How should that have affected the analysis of the ACA?

We then turn to the Foreign Affairs (still Panel #4). What can Congress do through the treaty power? How do other powers limit the scope of Congress power to act through treaties? What is the connection between a treaty and legislation?

We then turn to Regulation of State Governments (Panel # 5). Are the laws at issue in these cases valid? What is the distinction between Commerce Clause validity and the limit on application to the states? What is the source and scope of the anti-commandeering principle and does that principle make sense?

Finally, at the end of class, I hope to begin Balance of Legislative and Executive Power: General and Domestic Matters (Panel # 6). For Thursday, focus on the Farber reading on the basic structure and powers of the President and relations with Congress. Note the discussion of legislative/executive relations and the changes wrought by the development of political parties. What is the difference between a presidential and parliamentary system of democratic government?