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The Private Action Requirement

Florida International University Law Review, 6, 1

8 Pages Posted: 18 Dec 2010 Last revised: 6 May 2014

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: December 16, 2010

Abstract

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.

Keywords: health insurance mandate, Commerce Clause

Suggested Citation

Magliocca, Gerard N., The Private Action Requirement (December 16, 2010). Florida International University Law Review, 6, 1. Available at SSRN: https://ssrn.com/abstract=1726582

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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