Abstract

http://ssrn.com/abstract=2137065
 


 



The Individual Mandate as Health Care Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius


Abigail R. Moncrieff


Boston University - School of Law

August 27, 2012

American Journal of Law and Medicine, Vol. 39, 2013
Boston Univ. School of Law, Law and Economics Research Paper No. 12-44
Boston Univ. School of Law, Public Law Research Paper No. 12-44

Abstract:     
There was an argument that the Obama Administration's lawyers could have made — but didn’t — in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to self-insure. This argument would done a better job than the Obama Administration's of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative justices’ primary concerns with upholding the mandate. This Article lays out this forgone defense of the individual mandate.

Number of Pages in PDF File: 35

Keywords: Obamacare, Commerce Clause, Necessary and Proper Clause, NFIB v. Sebelius, insurance mandate

JEL Classification: K32

Accepted Paper Series


Download This Paper

Date posted: August 29, 2012 ; Last revised: September 19, 2013

Suggested Citation

Moncrieff, Abigail R., The Individual Mandate as Health Care Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius (August 27, 2012). American Journal of Law and Medicine, Vol. 39, 2013; Boston Univ. School of Law, Law and Economics Research Paper No. 12-44; Boston Univ. School of Law, Public Law Research Paper No. 12-44. Available at SSRN: http://ssrn.com/abstract=2137065 or http://dx.doi.org/10.2139/ssrn.2137065

Contact Information

Abigail R. Moncrieff (Contact Author)
Boston University - School of Law ( email )
765 Commonwealth Avenue
#1170D
Boston, MA 02215
United States
617-353-2212 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 561
Downloads: 76
Download Rank: 187,844
People who downloaded this paper also downloaded:
1. How NFIB v. Sebelius Affects the Constitutional Gestalt
By Lawrence Solum

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.531 seconds