Congress, Courts, and Commerce: Upholding the Individual Mandate to Protect the Public's Health

Hodge, James G.; Brown, Erin C. Fuse; Orenstein, Daniel G.; O'Keefe, Sarah
September 2011
Journal of Law, Medicine & Ethics;Fall2011, Vol. 39 Issue 3, p394
Academic Journal
Among multiple legal challenges to the Patient Protection and Affordable Care Act (PPACA) is the premise that PPACA's 'individual mandate' (requiring all individuals to obtain health insurance by 2014 or face civil penalties) is inviolate of Congress' interstate commerce powers because Congress lacks the power to regulate commercial 'inactivity.' Several courts initially considering this argument have rejected it, but federal district courts in Virginia and Florida have concurred, leading to numerous appeals and prospective review of the United States Supreme Court. Despite creative arguments, the dispositive constitutional question is not whether Congress' interstate commerce power extends to commercial inactivity. Rather, it is whether Congress may regulate individual decisions with significant economic ramifications in the interests of protecting and promoting the public's health. This article offers a counter-interpretation of the scope of Congress' interstate commerce power to regulate in furtherance of the public's health.


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