Document Type

Commentary

Publication Date

2012

Abstract

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the Supreme Court will abide by its previously announced doctrines and uphold the individual mandate. So I mean to engage U.S. Department of Health and Human Services v. Florida as the easy case it is and to explore an underappreciated feature of how it came to be so easy. My focus is the role of United States v. Lopez, in which the Supreme Court famously struck down the Gun-Free School Zones Act of 1990 as beyond Congress’s power to enact under the Commerce Clause. In the conventional telling, Lopez (along with its sidekick, United States v. Morrison) is the source of the doctrinal threat to the PPACA’s individual mandate. Before Lopez, the Supreme Court had settled into the practice of upholding pretty much anything that Congress claimed to be within its commerce power, largely on the strength of the econometrically undeniable proposition that every law that does anything (or at least every law that does anything to a lot of people) has effects on interstate commerce. But for Lopez, the conventional view therefore runs, we would live for practical purposes in a world of plenary federal power. Courts would not take Commerce Clause challenges seriously, and any attack on the PPACA would have to be mounted on other grounds.

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