He is correct that this law violates the Tenth Amendment and is unconstitutional.
But ever since FDR tried to pack SCOTUS and they threw out stare decisis and suddenly upheld the New Deal laws, many of the laws Congress pass are likewise unconstitutional but SCOTUS has no problem upholding those.
You’d think Napolitano would have mentioned this. If Napolitano wanted to give a fair rundown of the case this would seem a salient point to mention. That it wasn’t, to me, suggests either someone who does not know what they are talking about or someone who is intentionally trying to skew the discussion.
Napolitano is a conservative hack who frequently misstates settled law in aid of his partisan beliefs (and his pocketbook).
That does not make his argument wrong in this instance, but it does mean that you’d be better off reading the analysis of smarter lawyers on both sides of the argument. (See, e.g., http://volokh.com/ for more intelligent legal discussion from a conservative POV).
Stare decisis as a legal principle does not mean that precedent should be upheld forever. It means, rather, that a precedent should be upheld unless there is a good reason to overturn it (by a court with the power and jurisdiction to do so).
But my point was specifically that after the court packing attempt in 1937, the same court started overturning their own decisions just to stay in FDR’s good graces and manufactured the expansion of the ICC to stay in office.
This is not some sober scholar giving a considered and dispassionate analysis, this is a conservative media lawyer (yes, he’s a former judge, but he’s functioning as an advocate for a particular side, not as an analyst) spewing hack partisan spin. Napolitano works for Fox News. Enough said.
Well I do not know the answer to this question but are we talking about parallel examples? Has Congress conditioned the receipt of money on the basis the states A.) modify their health care regulation in certain areas B.) surrender the regulation in other areas and C.) spend state taxpayer-generated dollars in a way that the Congress wants it done.
Now, assuming these dictates to the states are not predicated upon the receipt of federal dollars, there is a U.S. Supreme Court decision which may assist the judge’s analysis. The case is National League of Cities v. Usery, 426 U.S. 833 (1976). “It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State, in wich they reside. It is quite another to uphold, a similar exercise of congressional authority directed, not to private citizens, but to the States as States…The question we must resolve here, then, is whether these determinations are ‘functions essential to separate and independent existence’ so that Congress may not abrogate the States’ otherwise plenary authority to make them.”