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The PPACA in Wonderland

American Journal of Law & Medicine, Vol. 38, 2012

Boston Univ. School of Law, Public Law Research Paper No. 12-03

19 Pages Posted: 19 Jan 2012 Last revised: 20 Mar 2012

Gary Lawson

Boston University School of Law

David B. Kopel

Independence Institute; Denver University - Sturm College of Law

Date Written: January 19, 2012

Abstract

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Keywords: constitutional, Obamacare, Necessary and Proper, Commerce Clause, taxing power

JEL Classification: K19, K32, K39, K49

Suggested Citation

Lawson, Gary and Kopel, David B., The PPACA in Wonderland (January 19, 2012). American Journal of Law & Medicine, Vol. 38, 2012; Boston Univ. School of Law, Public Law Research Paper No. 12-03. Available at SSRN: https://ssrn.com/abstract=1988167

Gary Lawson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

David B. Kopel

Independence Institute ( email )

727 East 16th Ave
Denver, CO 80203
United States
303-279-6536 (Phone)
303-279-4176 (Fax)

HOME PAGE: http://www.davekopel.org

Denver University - Sturm College of Law

2255 E. Evans Avenue
Denver, CO 80208
United States

HOME PAGE: http://www.davekopel.org

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