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Four Constitutional Limits that the Minimum Coverage Provision Respects


Neil Siegel


Duke University - School of Law

December 1, 2011

Constitutional Commentary, Vol. 27, p. 591, 2011

Abstract:     
Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes - or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by imposing a mandate, unless it reasonably believes that the regulation will ameliorate a significant collective action problem involving multiple states; or (4) to impose an economic mandate unless it reasonably believes that other regulatory means would be less effective or more coercive.

Number of Pages in PDF File: 29

Keywords: Commerce Clause, health insurance mandate, Affordable Care Act, collective action federalism, congressional powers

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Date posted: September 19, 2011 ; Last revised: December 1, 2011

Suggested Citation

Siegel, Neil, Four Constitutional Limits that the Minimum Coverage Provision Respects (December 1, 2011). Constitutional Commentary, Vol. 27, p. 591, 2011. Available at SSRN: http://ssrn.com/abstract=1930249

Contact Information

Neil Siegel (Contact Author)
Duke University - School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
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