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Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

22 Pages Posted: 21 Nov 2011  

Edward A. Hartnett

Seton Hall University School of Law

Date Written: November 21, 2011

Abstract

There are many reasons to think that the Supreme Court will provide an up/down determination regarding the constitutional validity of the individual mandate. Existing Commerce Clause doctrine is shaped in a way that discourages as-applied challenges, prior successful challenges under the Commerce Clause have been facial challenges, and the as-applied challenge in Raich was soundly rejected.

In light of all this, odds are that the Supreme Court will either find the individual mandate constitutional on its face, following cases like Wickard and Raich, and foreclosing the possibility of as-applied challenges, or unconstitutional on its face, following cases like Lopez and Morrison, and foreclosing the possibility that it could be constitutionally applied in some instances.

But not necessarily. Because the Court is being asked to articulate a principle for the first time, it is freer to capitalize on its comparative competence, follow the path illuminated by Judge Sutton, and render a decision that lowers the stakes rather than raises them.

Keywords: individual mandate, Affordable Care Act

Suggested Citation

Hartnett, Edward A., Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act (November 21, 2011). University of Richmond Law Review, Forthcoming; Seton Hall Public Law Research Paper No. 1962722. Available at SSRN: https://ssrn.com/abstract=1962722

Edward A. Hartnett (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8842 (Phone)

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