Health, Education & Welfare



Book: A Conspiracy Against Obamacare: The Volokh Conspiracy and the Affordable Care Act (Palgrave MacMillan, 2013). Co-authored.

Chief Justice Roberts and the window tax. July 9, 2012.

Obamacare decision explained. Excerpts from Kopel speech to Liberty on the Rocks, Louisville,Colorado. July 9, 2012:

The Bar Review version of NFIB v. Sebelius. Scotusblog. July 6, 2012.

Next step: Repeal the individual mandate because it is unconstitutional. June 29, 2012.

Obamacare ruling explained. Kopel on CPT12 "Devil's Advocate" show. June 29, 2012. 27 minutes.

Andrew Jackson shows what we need to do next. National Review Online, June 29, 2012.

Major limits on the Congress’s powers, in an opinion worthy of John Marshall. Scotusblog. June 28, 2012.

Podcast with Prof. Ilya Somin interviewed by Kopel, on the Necessary and Proper Clause in NFIB v. Sebelius. June 28, 2012. 28 minutes.

Debate on constitutionality of Obamacare. Kopel vs. Univ. of Colo. Prof. Scott Moss. DU Law School. April 11, 2012.

Nearing the end of the search for the non-existent limiting principles. If Obamacare is constitutional, the government can make you buy anything. March 29, 2012.

When did the Independence Institute explain that Obamacare was probably unconstitutional? Senior Fellow Rob Natelson on Jan. 23, 2010. Research Director Dave Kopel on March 22, 2010 (tax power), and April 2, 2010 (commerce power, constitutional structure). Here is the video of Kopel's April 28, 2010, debate with former Colorado Supreme Court Justice Jean Dubofsky, who had announced, "I believe that the lawsuit stands little chance of success,” and "The mechanism chosen by Congress to enforce the requirement of health insurance is not unusual."

Obamacare Gives Government Unlimited Power, Violates Constitution. PolicyMic. Mar. 28, 2012.

Bad News for John Marshall. 121 Yale Law Journal Online 529 (2012).With Gary Lawson. Why Obamacare advocates are wrong to claim that finding the mandate unconstitutional will wreck modern constitutional law.

Podcast on Independence Institute amicus brief on the Individual Mandate in the health control law. Mar. 12, 2012. With Rob Natelson. 32 minutes.

Podcast on Independence Institute amicus brief on the Medicaid Mandate in the health control law. Mar. 12, 2012. With Rob Natelson. 26 minutes.

The Incidental Unconstitutionality of the Individual Mandate. Legal Workshop. Feb. 6, 2012. With Gary S. Lawson.

The PPACA in Wonderland. 38 American Journal of Law & Medicine (forthcoming 2012)(Boston University). With Gary Lawson.

The Incidental Unconstitutionality of the Individual Mandate. Legal Workshop. Feb. 6, 2012. With Gary S. Lawson.

Independence Institute amicus brief in HHS v. Florida Supreme Court case. Argues that the individual mandate cannot be justified by the Necessary and Proper clause.

Independence Institute amicus brief in Florida v. HHS, before the US Supreme Court. Argues that the Obamacare Medicaid mandate (states must drastically expand Medicaid eligibility, or lose all federal matching funds for Medicaid) violates the Constitution.

Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate. 121 Yale Law Journal Online 267 (2011). With Gary Lawson. HTML. PDF.

Supreme Court: “Obviously, direct control of medical practice in the states is beyond the power of the federal government.” Dec. 1, 2011.

What Should the Supreme Court do with the Obamacare Case? Scotusblog. Oct. 3, 2011.

Granting certiorari to an ACA challenge. Scotusblog. Aug. 2, 2011.

Affordable Care Act pushes limits of constitutionality. Explains the four major Obamacare cases currently before the federal Circuit Courts of Appeal. Solutions (Colorado news site on health care issues.) June 21, 2011.

"Health Laws of Every Description": John Marshall’s Ruling on a Federal Health Care Law. 12 Engage (no. 1, June 2011): 49-54. With Robert G. Natelson.

Neither Necessary Nor Proper, Amicus Brief. podcast with Dave Kopel and Rob Natelson explains the Independence Institute's recent brief in Obamacare cases. MP3. 32:59.

Independence Institute amicus brief in Florida v. HHS (11th Circuit). Explains the original meaning of the Necessary and Proper Clause, and why the individual mandate is neither "necessary" nor "proper."

Interview with Cato's Ilya Shapiro on the legal challenges to the new federal health control law. podcast, MP3. April 18, 2011. 39 minutes.

Kopel joins amicus brief to the Fourth Circuit Court of Appeals, in Virginia v. Sebelius, one of the state lawsuits against Obamacare. Lead attorney is Ilya Somin, of George Mason Law School. Filed April 4, 2011, on behalf of the Washington Legal Foundation, and 14 law professors.

Health insurance is not 'commerce'. A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned. National Law Journal. March 28, 2011. With Rob Natelson.

Why Obamacare mandate penalty can't be a tax. Orange County Register. March 4, 2011.

Obamacare Ruled Unconstitutional. Feb. 4, 2011. On the Colorado Public Television program "Devil's Advocate," Kopel and Rob Natelson on the court challenges tot he health control law. 30 minutes, YouTube.

ObamaCare Ruled Unconstitutional in Florida. podcast. 33 minutes. Feb. 3, 2011. With Rob Natelson & Justin Longo.

Virginia Court Rules Against Obamacare. Kopel and Rob Natelson explain it all. Dec. 14, 2010. 25 minutes.

Obamacare's Destiny: The Supreme Court. Analysis of the federal district court decision refusing to dismiss the 20-state suit. The New Ledger. Oct. 20, 2010. corrects report on Betsy Markey’s health-care vote., Oct. 18, 2010.

Kopel comment on states’ victory on health control lawsuit. October 14, 2010.

The Obamacare mandate is unconstitutional. Discussing the granting of the motion to dismiss in Thomas More Law Center v. Obama (Fed. Dist. Ct., Michigan). The Daily Caller. Oct. 8, 2010.

Obama Care and the Commerce Clause. Oct. 4, 2010. 12 minutes. The Denver Post recently editorialized in favor of Obama Care and against Amendment 63 - the right to health care choice. In their reasoning for doing so, they cited the commerce clause in the Constitution as evidence that an individual mandate is constitutional. Dave Kopel and Rob Natelson debunk the Post's editorial. Listen as they explain why the commerce clause is a poor argument against health care choice in Colorado.

The Individual Health Care Mandate and Enumerated Powers. August 5, 2010. Southeastern Association of Law Schools annual meeting, Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown), Jack Balkin (Yale),  Gillian Metzger (Columbia), and Kopel. The moderator was  Bradley A. Smith (Capital). The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virginia, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making.

Debate on constitutionality of Obamacare. Held on April 28, 2010, at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was Kopel. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both sides devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.

Health insurance mandate as a privacy right violation. April 13, 2010.

Inaccurate legal claim from the Democratic Governors Association. April 12, 2010.

An Act for the Relief of Sick and Disabled Seamen. No precedent for Obamacare. April 2, 2010.

Destroying the Constitution’s Structure is not Constitutional. Obamacare. April 2, 2010.

Pretending that no law professors question Obamacare. April 1, 2010.

Is the tax power infinite? March 22, 2010.

Is the Slaughter Solution constitutional? March 13, 2010.

Constitutionality of the “Nebraska Compromise.” December 23, 2009.

Health bill and gun ownership. November 24, 2009.

Is Obamacare Constitutional? August 17, 2009.

Other Health Issues

Facts about mental illness and crime. Washington Post. Feb. 20, 2015.

Reforming Mental Health Law to Protect Public Safety and Help the Severely Mentally Ill . 59 Howard Law Journal (2015, forthcoming). With Clayton Cramer & Carolyn J. Dobbins.

Too often a crutch. Studies important enough to mention in a story should be cited. Rocky Mountain News/Denver Post, Mar. 8, 2007. Analysis of Katy Human's flawed Denver Post article about what "studies have shown" about subsidized health insurance for children. And more general problems about use of "studies have shown" without citation to the studies.

Papal coverage here magnificent. But Catholics don't get a 'free ride' as veto of controversial bill runs afoul of Post. Rocky Mountain News/Denver Post, April 9, 2005.

The Baby Gap. Comparing rates of illegitimacy and other social problems in red and blue states., Dec. 8, 2004.

Junk Science: Take it with a grain of salt., Dec. 6, 2004. The greatest junk science stories of the year.

Dutch descend into barbarism. Denver dailies soft-pedal the killings of newborns under Groningen Protocol. Rocky Mountain News/Denver Post, Dec. 4, 2004. Plus analysis of coverage of the democracy movement in the Ukraine, the UN scandals, and the Alabama state constitutional referendum.

Articles of Faith. AIDs in Africa. Tech Central Station, July 23, 2004. With Carlo Stagnaro and Alberto Mingardi.

Post gets medical pot story right. Dispute over Hayden man's possession of marijuana is not yet in federal court. Rocky Mountain News/Denver Post. Jan. 31, 2004.

Blogs unearth dubious sources. Theories finger military for earthquake, illness, but who's behind these stories?Rocky Mountain News/Denver Post. Jan. 3, 2004. The junk scientist behind the hysteria over depleted uranium and other falsehoods about the U.S. military.

Implication goes too far in column. Strong suggestion that woman underwent partial-birth abortion likely misled readers. Rocky Mountain News/Denver Post. Nov. 8, 2003. Also, Ann Telnaes' anti-Christian hate cartoon, and asbestos litigation reform.

West Nile fails to stir DDT debate. Mosquito-borne illness kills Coloradans but merits of banned pesticide ignored. Rocky Mountain News/Denver Post. Aug. 30, 2003.

Complex issues, one-sided stories. Media excel at presenting one side of a debate. Rocky Mountain News/Denver Post, August 18, 2002. Campaign finance "reform," bilingual teachers, African debt, vaccinations.

Smoking hottest hot-button issue. Rocky Mountain News/Denver Post. July 14, 2002.

Two hysterical drinking stories. Wire reports about college students and alcohol mixed ridiculous assumptions, sloppy journalism. Rocky Mountain News/Denver Post. Apr. 21, 2002.

Right to Die. More ADA nonsense. National Review Online. Mar. 27, 2002.

Right of Refusal:If your doctor starts pestering you about guns, you have several options.  National Review Online. July 5, 2001. With Dr. Timothy Wheeler.

Mad Cows, Madder Government. National Review Online. June 12, 2001. With Paul Gallant and Joanne Eisen.

Should Cloning Be Legal? It's not a federal question.  National Review Online. Apr. 16, 2001. With Glenn Harlan Reynolds. Featured in World Health News, an online news digest from the Center for Health Communication of the Harvard School of Public Health.

Who Killed George Washington?National Review Online. Jan. 24, 2001. With David Stolinksy.

Trojan Horse Legislation: Big Brother's medical crew. National Review Online. June 15, 2000. Immunization and health dossiers on students. With Linda Gorman.

No Con-Census for Domestic Violence. Census intrusion on domestic violence victim. National Review Online. June 13, 2000.

Tune Out, Light Up. In terms of destroying years of life, television is far worse than tobacco. National Review Online. May 29, 2000. In italiano.

The Federal Leviathan is Counting on You. Census. Cato Institute, Apr. 4. Previously published in Colorado Springs Gazette, Mar. 26, 2000. 

Are Gun Locks Like Aspirin Caps?National Review Online. Mar. 29, 2000.

Visiting Nurse Programs: A Good Idea but not with Tobacco Loot. Independence Institute Issue Backgrounder. 1999-D. Feb. 10, 1999.

The Partial Birth Abortion Ban. With Glenn Reynolds. Colorado Statesman. Aug. 30, 1996.

blog: Sensible Public Health, 3/24/06. Don't Mess with Texas Morals Police: Tavern Patrons Arrested for Intoxication, 3/23/06. Should Health Care Workers be able to Refuse Treatment to Gun Owners? 3/20/06. Illinois Class Action against Philip Morris Goes Up in Smoke, 12/15/05.


Taxpayers for Public Education v. Douglas County School District (2014). Independence Institute amicus brief to the Colorado Supreme Court in the Douglas County school vouchers case in support of the respondents. Covers empirical and social science issues.

How President Obama is bringing real education reform to Colorado. May 12, 2010.

Another reason to be happy you went to law school. Discussion of Louis Menand’s new article "The Ph.D. Problem." November 23, 2009. 

Interview with Colorado Freedom Report, about the Independence Institute's new "" website. Nov. 14, 2007. MP3.

"Dhimmitude and Disarmament." 18 George Mason University Civil Rights Law Journal(forthcoming 2008). PDF.

Media Errors in Coverage of Boulder High School: Falsehoods, Distortions, and Omissions by Bill O’Reilly and “Caplis & Silverman”. June 13, 2007. [PDF]

Kopel vs. Bill O'Reilly. "The O'Reilly Factor," June 4, 2007. video. Boulder High School controversy.

Independence Institute podcast, discussing O’Reilly’s coverage. June 4, 2007.

What is Montessori? The Volokh Conspiracy, May 25, 2007.

"Gun-Free Zones." Wall Street Journal, April 18, 2007. The murders at Virginia Tech University.

The Resistance. Teaching common-sense school protection. National Review Online, Oct. 10, 2006.

Only press itself can stop copycats. Killers, suicides thrive on publicity given those who perpetrated earlier crimes. Rocky Mountain News/Denver Post,Sept. 23, 2006.

Make Schools Safe for Kids, not Criminals. Arming teachers is the most realistic way to reduce school shootings. podcast. Oct. 5, 2006. MP3.

blog: Arming teachers to stop school killers, 10/6/06.

Churchill report finds News on top. Web site had more extensive coverage - and quicker - than its rival at the Post. Also, media bashing of Colorado Springs and its elected officials and congressional candidates because of their un-p.c. stands on some social issues. Plus chess and poker coverage. Rocky Mountain News/Denver Post, May 20, 2006.

Report cards preview shaky. Without evidence, Post leaps to conclusion of unreliability. Rocky Mountain News/Denver Post, Dec. 17, 2005.

Newsweek's bad streak hits home. First the Quran debacle, then magazine's dubious elevation of a local high school. Rocky Mountain News/Denver Post, May 21, 2005. Plus an error-ridden article about the 1992 Amendment 2 anti-gay rights ballot initiative. Israel's 57th year of independence is covered solely with a biased A.P. story whitewashing the 1948 Arab war against Israel.

CU's academic culture ignored. Post columnist nearly alone in probing 'dysfunctional' milieu. Rocky Mountain News/Denver Post, Mar. 12, 2005. Plus the academic freedom cases of Phil Mitchell at CU, and George Forsyth at CSU. And the unfair treatment of Liquor Mart, and the Baby 81 hoax.

Media Uneven in Churchill Rumpus. Westword first, but News, KHOW best as blogs, other news outlets play catchup. Rocky Mountain News/Denver Post, Feb. 13, 2005.

Newsom Wins One. A First and Second victory. National Review Online. Jan. 8, 2004. Fourth Circuit rules that school cannot prohibit student from wearing NRA Shooting Sports Camp t-shirt.

In the case of Newsom v. Albermarle, a middle school threatened to punish a student for wearing an NRA shooting sports camp t-shirt. Independence Institute amicus brief for the Fourth Circuit Court of appeals argues that shooting sports are wholesome and promote good character, and that speech promoting shooting sports cannot rationally be censored in a public school. The Fourth Circuit ruled in favor of the student.

Follow the Leader. Israel and Thailand set an example by arming teachers. Russia should follow, to prevent more hostage-taking in schools. National Review Online. Sept. 3, 2004.

When Heroes Are Outlawed: How Joel Myrick Saved Lives by Breaking the Law. By Ari Armstrong. How the Gun Free School Zones law makes schools safe for mass murderers.

Wisconsin Diversifies. The saga of the Mountaineer. National Review Online. Sept. 5, 2002. University of Wisconsin administrators attempt to prohibit the West Virginia "Mountaineer" mascot from carrying his musket at a football game.

CSAP Tantrum a Baseless Snit. Rocky Mountain News/Denver Post. Oct. 6, 2001.

Zero Good Sense. Zero tolerance. National Review Online. June 6, 2001. With Paul Gallant and Joanne Eisen. In italiano.

Sure, Blame the Gun. The Santee murders. National Review Online. Mar. 9, 2001. With Ari Armstrong. Reprinted in School Shootings. At Issue (Greenhaven Press, 2002).

School-Board Sloth. The case for abolishing school boards, or cutting the size of school districts. National Review Online. Mar. 8, 2001. With Rep. Tom Tancredo.

Gunning for the Kiddies. What kind of a “climate” has taken hold of society? National Review Online. Sept. 22, 2000. With Drs. Paul Gallant & Joanne Eisen.

Don't Let Schools off the Hook. The dos and don'ts of preventing juvenile violence. National Review Online. July 12, 2000. With Dr. Helen Smith, forensic psychologist. In italiano.

Colorado Senate Rejects Gun Legislation. National Review Online, Apr. 12, 2000. Colorado Senate nixes ban on possession of guns by law-abiding adults at universities and schools.

What If We Had Taken Columbine Seriously? The political discourse since the killings last year has been foolish, escapist, and cowardly. The Weekly Standard, April 24, 2000. Cover story. Italiano: E se avessimo preso la Columbine seriamente?

Gun-Control Won't Stop the Madness. By Dr. Paul Gallant and Dr. Joanne Eisen.

Getting Columbine Right. More gun control wouldn't have stopped this tragedy. You're wrong, Al. National Review Online. Oct. 12, 2000.

Who's Responsible For Columbine? National Review Online. May 25, 2000.

"Guns, Gangs, and Preschools: Moving Beyond Conventional Solutions to Confront Juvenile Violence," 1 Barry Law Review63 (2000).

Clinton Targets Guns Again: President's Politicking Won't Achieve Goal. Rocky Mountain News. May 2, 1999.

The Attack on Civil Liberties. Why the Columbine High murders should not be exploited to attack the First Amendment or the Second Amendment. By Ari Armstrong.

Making Schools Safe for Criminals. Gun control laws ensured that the teachers and students at Columbine High School would be defenseless. By Linda Gorman.

A Fighting Chance. Crime victims, like those at Columbine, left helpless by anti-gun laws, and the gun control mentality. By Richard Griffiths.

Special Report on the Columbine High School tragedy.

Are They Schools or Are They Prisons? Compulsory schooling. Pueblo Chieftain, Nov. 11. 1995.

blog: Denver University Law School bar failure rate, 1/3/06. Flaws in First Amendment Defense of Ward Churchill, 3/14/05. University of Colorado Buy-out of Churchill, 3/10/05. Ward Churchill and the Jeffries Case, 3/1/05. Professors not opposed to academic fraud and terrorism, 2/28/05. Lack of intellectual diversity in Organization of American Historians, 4/7/03.  Armed Israeli teacher stops terrorist attack on high school, 5/29/02. Calif. school district bars students from graduation ceremony because they don't have approved post-graduation life plans, 5/13/02. Children use "finger guns," then school interrogates them about parental gun ownership, 5/13/02. Montclair, N.J., school promotes gun prohibition, blocks pro-rights speech, 5/11/02. (The school board later relented.) Columbine cover-up, 3/9/02.


It's not hard to spot the fallacies In columns and news stories. City's dailies promulgate 'facts' that are anything but. Rocky Mountain News/Denver Post. Nov. 22, 2003. False claims that most of the people counted as "homeless" are all living on the street; that the partial-birth abortion ban lacks an exception for maternal life; and that most victims of war are women and children. Plus the amazing errors of Supreme Court history in a recent column by Steven and Cokie Roberts.

Objectivity takes holiday at Post. So-called analysis package on proposed 'kid tax' slanted heavily in favor of measure's proponents. Rocky Mountain News/Denver Post. Nov. 4, 2001.

Fatherlessness: The Root Cause. National Review Online. May 2, 2000.

Family Cap Urged on Welfare Reform. Palisade Tribune. January 19, 1997.

The Marriage-Crime Connection. The American Enterprise. June 1996.

Welfare Reform's Privacy Risk. How the welfare reform law invades the privacy of people who don't receive welfare, by compelling use of Social Security numbers in many non-welfare contexts. Washington Times. Dec. 11, 1995.

The Welfare Factor in Social Decay. St. Louis Post-Dispatch. With David W. Murray. May 5, 1995.

Corporate welfare

Denver's New Welfare Hotel: Why the Convention Center Hotel is a Mistake. Independence Institute Issue Paper no. 2-2003. Jan. 15, 2003.

Coors Field: Fans' Homerun, but Taxpayers' Strike-Out. St. Paul Pioneer Press. Sept. 15, 1999.

Deflating Hysteria over Broncos. Denver Business Journal. February 13, 1998.

Constitution Prohibits Deals with Transportation Companies. The United Airlines welfare plan. June 1991.


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