Eugene Volokh reports that Georgetown Law’s Nicholas Rosenkranz will be guest-blogging on the Volokh Conspiracy about The Subjects of the Constitution and The Objects of the Constitution, two articles by Rosenkranz that appear in the Stanford Law Review.
I admire the ambition of these articles, which are more ambitious than anything I’ve attempted to date. But I have some pretty fundamental disagreements with their substance. While I’ve been meaning to think through some of these disagreements in a careful scholarly analysis, I have not had a chance to turn to that yet. Accordingly, I look forward to Rosenkranz’s posts. Perhaps the posts will dispel some of my concerns. If not, I suspect they will help me to understand our differences better.
The constitutional challenges to the individual mandate in the Affordable Care Act seem as good a place as any to figure out how a theory of judicial review cashes out. One question that I will have in mind as I read the posts and comments will be this: What does Rosenkranz’s theory of judicial review say about the who, what, and when of challenging the individual mandate in federal court?
This admittedly compound question has three parts that focus on three different aspects of judicial review: “Who” relates to standing; “what” relates to substance; and “when” relates to timing.
An aggressive reading of Rosenkranz’s articles indicates that the best combined answer is: (1) anyone subject to any aspect of the Affordable Care Act; (2) can challenge the individual mandate; (3) immediately upon enactment of the Affordable Care Act into law.
If this combination of answers is right under Rosenkranz’s theory, then Rosenkranz’s theory must be wrong. Or so I believe at present.