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Federalism, Lochner, and the Individual Mandate

25 Pages Posted: 4 Mar 2011 Last revised: 8 Nov 2011

Peter J. Smith

George Washington University - Law School

Date Written: March 4, 2011

Abstract

The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this objection flows most logically from the Due Process Clause of the Fifth Amendment, as a species of substantive due process. Opponents of the individual mandate, however, have framed their claims in terms of federalism, contending that Congress lacks power under Article I to regulate “inactivity.” But the libertarian objection has simply nothing to do with federalism - that is, a system for allocating power between the federal government and the states. Whether the object of regulation is passive or instead active tells us nothing about whether it is more properly regulated at the state or federal level. Incorporating a categorical libertarian limitation into federalism doctrine, moreover, would limit federal authority even when the government’s interests in regulation are compelling, and even when the states are simply unable, because of collective action problems, to address a problem of national scope and importance. Smuggling a libertarian-based limitation into constitutional law by concealing it in the garb of federalism can only deepen the suspicions of those who are already inclined to view arguments about federalism as simply a guise for some other policy agenda. If opponents of the individual mandate wish to raise a libertarian objection, then they are free to do so; but they should do so in an intellectually coherent way, and they should be clear about the consequences - both for state and federal authority - that inevitably would follow.

Keywords: Constitutional Law, Health Care, Individual Mandate, Libertarianism

Suggested Citation

Smith, Peter J., Federalism, Lochner, and the Individual Mandate (March 4, 2011). Boston University Law Review, Vol. 91, p. 1723, 2011; GWU Legal Studies Research Paper No. 534; GWU Law School Public Law Research Paper No. 534. Available at SSRN: https://ssrn.com/abstract=1777208 or http://dx.doi.org/10.2139/ssrn.1777208

Peter J. Smith (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4797 (Phone)

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