Rivkin, Casey, & Jack Balkin Debate the Constitutionality of an Individual Insurance Mandate

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A Healthy Debate: The Constitutionality of an Individual Mandate

Health care reform has been and continues to be one of the highest priorities in the Obama Administration’s domestic agenda. The proposals for reform played a major role in the debates leading up to President Obama’s election and dominate the Administration’s, and Congress’s, current domestic activities. While most policymakers seemingly agree that reform is necessary, there is much disagreement about the particulars of the appropriate reform. One of the more contested features is the so-called individual mandate—a federal requirement that every American possess a certain level of health insurance.

In A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack Balkin over the constitutionality of such a mandate. In their Opening Statement, Rivkin and Casey argue that if Congress has the power to reform the health care system, it must be found in the Commerce Clause. After examining the limitations that the Court has set out in its modern Commerce Clause jurisprudence, Rivkin and Casey conclude that the mandate is even less defensible that the laws struck down in United States v. Morrison or United States v. Lopez. And it is no answer to claim that the power to implement the mandate can be found in the Taxing and Spending Clause. Even under that clause, Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

Check back weekly as the debate unfolds. As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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