The Yale Law Journal Online: Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate

The Yale Law Journal Online recently published Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, in which Gary Lawson and David B. Kopel respond to Andrew Koppelman’s Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform. Koppelman’s essay argued that the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act could be derived from the Commerce Clause and the Necessary and Proper Clause by the same logic that renders federal laws against mail robbery constitutional. Lawson and Kopel argue that contrary to Koppelman’s belief, the Necessary and Proper Clause cannot be used to validate the constitutionality of the individual mandate. To arrive at this conclusion, Lawson and Kopel rely on principles of eighteenth-century agency law, administrative law, and corporate law embedded in the Necessary and Proper Clause.

Preferred citation: Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 YALE L.J. ONLINE 267 (2011),

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4 Responses

  1. Ken Rhodes says:

    I have to chuckle at the hubris in the titles–“Bad news for …”

    Life is complex. The law is complex. As a software engineer I learned early on that software doesn’t make judgments; it makes decisions, but only by following the rules of the program. Fortunately, I suppose, the program here is The Constitution, and the programming statements are anything but rigid and non-ambiguous. The price we pay, in a manner of speaking, is that we need to impose judgment on the program, which is why we have a Supreme Court.

    Cases that are obvious are relatively rare. Brown v. Board of Ed. is a notable exception, but for the most part, reasonable people make reasonable arguments on both sides, and most cases are decided by a split vote. Is there anybody who now thinks that the decision on this question will be so obvious that it will not be a political decision?

  2. Joe says:

    Brown v. Bd wasn’t as obvious at the time — it was actually held over for re-argument in part because there was a possible close split on the Supreme Court and a few respected legal minds at the time opposed the result.

    I do agree with the wry smile — both titles are a tad much though I do personally think the case against constitutionality is much weaker than many other cases.

  3. Brett Bellmore says:

    Personally, I think the case against constitutionality is quite strong, it’s just that we’ve been habituated to accepting grossly unconstitutional acts, and, while novel, this act isn’t that much MORE unconstitutional, so it seems like a close case.

    Rather like Brown was only a tough call because we’d gotten used to the 14th amendment being a nullity.

  4. Joe says:

    Before the 1950s keeping blacks off juries was rejected. Grandfather clauses, white primaries, inequality of resources in schools, mandated residential segregation and many other things were overturned by the courts.

    Not sure how this was a “nullity.” John Harlan, of Plessy fame, thought segregation of public schools were different, at least before college. It was not a “nullity” of the 14A to accept segregation. In fact, the Framers of the 14A did.

    The claim the 14A was a “nullity” is about as strong as the hyperbole of the language used against this law, including the fact it will mean no real limits on the Commerce Clause, repeated listing of just that repeatedly ignored as well not enough for the people in question.

    The use of a tax, and re-reading the section on the issue darn it sure sounds like they are talking taxes, to encourage certain people to do certain things is not really “novel” nor is regulation by the feds of health care. The USSC also took a question about Medicaid for review. Medicaid is not “novel” either, nor is depriving states of federal funds if it doesn’t go along with the strings.

    Finally, when in your opinion were we not so “habituated”? Was there ANY time when you think the people, who ultimately are given power in this country (“we the people”) did not so “accept”? It must not be 1950, since the 14A was a “nullity” then. If “never,” well, what’s the point? It was always the case, so limited government is a sham.