The Private Action Requirement
Gerard N. Magliocca
Indiana University Robert H. McKinney School of Law
December 16, 2010
Florida International University Law Review, Vol. 6, p. 100, 2011
This Symposium Essay assesses the constitutional challenge to the individual health insurance mandate. The principal argument against the mandate is that Congress is barred from regulating private inaction (or compelling action) under its Commerce Clause authority. Such a "private action" requirement must be judged by comparison to the state action doctrine of the Fourteenth Amendment, which is the only other general limitation on the power of Congress that distinguishes between acts and omissions. Measured against this principle, the attack on the individual mandate is without merit.
Number of Pages in PDF File: 8Accepted Paper Series
Date posted: December 18, 2010 ; Last revised: May 27, 2012
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