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
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: K32Accepted Paper Series
Date posted: August 29, 2012 ; Last revised: September 19, 2013
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