Health, Education & Welfare


Terkel v. Centers for Disease Control. No. 21-40137. U.S. Fifth Circuit Court of Appeals. Amicus brief of Cato Institute, Prof. Randy E. Barnett, Reason Foundation, Individual Rights Foundation, and Independence Institute. June 3, 2021. The federal government's power to regulate interstate commerce does not authorize a federal ban on eviction proceedings in state courts.


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

Analysis of Supreme Court decision

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

Obamacare decision explained. Video. 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.

What's next for the opposition? 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.

Amicus briefs

Department of Health and Human Services v. State of Florida. 567 U.S. 519 (2012). Amicus brief of the Independence Institute and of the authors of The Origins of the Necessary and Proper Clause. Obamacare brief on the individual mandate. The individual mandate cannot be upheld under the Necessary and Proper Clause. Chief Justice Roberts' opinion for the Court on this issue included the first Court citation of Chief Justice Marshall's newspaper essays explicating the meaning of McCulloch v. Maryland, which we had presented in our brief.

State of Florida v. Department of Health and Human Services. 567 U.S. 519 (2012). Amicus brief of the Independence Institute. Brief on the Obamacare Medicaid mandate that states must drastically expand Medicaid eligibility, or lose all federal matching funds for Medicaid. The Medicaid mandate violates the State sovereignty principles of the Constitution.

Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011). Amicus brief of Authors of The Origins of the Necessary and Proper Clause (Gary Lawson, Robert G. Natelson & Guy Seidman) and the Independence Institute. The Obamacare individual mandate is not a constitutional exercise of congressional power under the Necessary and Proper Clause.

Florida v. United States Department of Health and Human Services. 648 F.3d 1235 (11th Cir. 2011). Amicus brief of the Independence Institute. Explains the original meaning of the Necessary and Proper Clause, and why the individual mandate is neither "necessary" nor "proper."

Commonwealth of Virginia v. Sebelius. 656 F.3d 253 (4th Cir. 2011). Amicus brief on behalf of the Washington Legal Foundation and 14 law professors, including Kopel. The Obamacare individual mandate is not "proper" under the Necessary and Proper Clause.

Journal articles

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. HTML. PDF.

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

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 269 (2012). With Gary S. Lawson.

"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.


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

The Individual Health Care Mandate and Enumerated Powers. Aug. 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). 93 mins.

Debate with former Colorado Supreme Court Justice Jean Dubofsky. CU Law School. April 28, 2010. (Video and audio are often out of sync by several seconds.) 96 mins.

Short articles and blogging

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.

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 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'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.

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

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

Mental health

Reforming Mental Health Law to Protect Public Safety and Help the Severely Mentally Ill. 59 Howard Law Journal 715 (2015). With Clayton Cramer.

The History of the 'Assault Weapon' Hoax. Part 1: The Crime that Started it All. A 1989 shooting at a Cal. schoolyard began the national "assault weapon" issue. It was a consequence of law enforcement failure. Mar. 2, 2018.

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

Alcohol and tobacco

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.

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.

Don't Mess with Texas Morals Police: Tavern Patrons Arrested for Intoxication. Mar. 23, 2006.

Illinois Class Action against Philip Morris Goes Up in Smoke. Dec. 15, 2005.


Should Health Care Workers be able to Refuse Treatment to Gun Owners? Mar. 20, 2006.

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.

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


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.

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.

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.

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

Junk science

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

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.

Vaccines, medicine, and pesticides

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

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.

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


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.

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

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.

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

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.

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

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

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

blog: Sensible Public Health. Mar. 24, 2006.


Rising antisemitism and racism in American higher education. Peter Boyles Show. Oct. 22, 2022.

Georgetown Law's actions against Ilya Shapiro lack credibility: Criticizing racial discrimination is protected by the university’s ‘Speech and Expression Policy.' Reason/Volokh Conspiracy. Feb. 3, 2022.

Colorado Constitution bans school’s attempt at resegregation. A Denver elementary school hosts racially segregated playground nights, despite the Colorado Constitution's prohibition on racial classification of pupils. Complete Colorado. Dec. 15, 2021.

Espinoza v. Montana Dept. of Revenue. No. 18-1195. U.S. Supreme Court. Sept. 18, 2019. Merits amicus brief. Many state constitutions, including Montana's, prohibit government aid to "sectarian" educational institutions. According to the original meaning, on the nineteenth century, "sectarian" did not refer to religion in general, but only to religions that were considered extreme, heretical, fanatical, or bad.

Some Topics and Learning Objectives for Second Amendment Courses. Second Thoughts (blog of the Firearms Law Center at Duke University). July 11, 2019.

The Colorado Constitution's No Aid to Sectarian Institutions Clause and Its Impact on Civil Rights. Colorado Special Advisory Committee to the United States Commission on Civil Rights. Sept. 2018.

Campus Scary. Suppression of pro-Second Amendment speech on campus. America's 1st Freedom. May 2019.

Law professor who slammed kangaroo courts could lead Trump's education civil rights office. The College Fix. by Greg Piper. Feb. 20, 2017.

Kopel signs Group Letter in support of Gail Heriot, to be Assistant Secretary for Civil Rights in U.S. Dept. of Education.

Colorado reforms

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.

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

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.

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.

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

School Safety

Armed and Educated. Allowing professors to carry licensed arms will enhance campus safety. Chronicle of Higher Education. Oct. 30, 2015.

America's Gun Debate Continues, with Schools in the Crossfire. "To the Point" on KCRW, Public Radio International. With Mark Follman, Mother Jones magazine; Josh Sugarmann, Violence Policy Center; Russ Moore, Shaker Junior High School. March 12, 2015. 33 minutes.

Guns, Gangs, and Preschools: Moving Beyond Conventional Solutions to Confront Juvenile Violence, 1 Barry Law Review 63 (2000).

Dhimmitude and Disarmament. 18 George Mason University Civil Rights Law Journal 305 (2008).

"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.

blog: Arming teachers to stop school killers. Oct. 6, 2006.

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.

Armed Israeli teacher stops terrorist attack on high school. May 29, 2002.

Columbine cover-up. Mar. 9, 2002.

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).

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?

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.

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.

Zero Tolerance

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.

Independence Institute amicus brief in Newsom v. Albermarle (4th Cir.) A middle school threatened to punish a student for wearing an NRA shooting sports camp t-shirt. The amicus brief 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.

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.

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

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.

blog: Children use "finger guns," then school interrogates them about parental gun ownership. Mar. 13, 2002.

blog: Montclair, N.J., school promotes gun prohibition, blocks pro-rights speech, May 11, 2002. (The school board later relented.)

Ward Churchill and the University of Colorado

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.

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.

blog: Flaws in First Amendment Defense of Ward Churchill, Mar. 14, 2005. University of Colorado Buy-out of Churchill, Mar. 10, 2005. Ward Churchill and the Jeffries Case, Mar. 1, 2005. Professors not opposed to academic fraud and terrorism, Feb. 28, 2005.

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.

Boulder High School

Media Errors in Coverage of Boulder High School: Falsehoods, Distortions, and Omissions by Bill O'Reilly and "Caplis & Silverman". June 13, 2007. PDF.

Other topics

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

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

blog: Denver University Law School bar failure rate. Jan. 3, 2006.

blog: Lack of intellectual diversity in Organization of American Historians. Apr. 7, 2003.

blog: Calif. school district bars students from graduation ceremony because they don't have approved post-graduation life plans. May 13, 2002.


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.


Littleton voters require citizen approval for eminent domain and corporate welfare. Colo. Inside Out. March 6, 2015.


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