On Slippery Constitutional Slopes and the Affordable Care Act

80 Pages Posted: 14 Jun 2012

See all articles by Stewart Jay

Stewart Jay

University of Washington School of Law

Date Written: April 2012


The Patient Protection and Affordable Care Act is one of the most significant laws ever passed by Congress. It is aimed at a social problem of the first order, the spiraling costs of health care and the millions of Americans without health insurance. The new law has engendered an enormous amount of public discussion and likely will be a major issue in the upcoming national elections. At the center of the controversy is the keystone of the Act: a mandate that almost all Americans obtain a minimum amount of health insurance or be assessed a penalty when paying their income taxes.

Lawsuits have been brought challenging the constitutionality of the mandate on numerous grounds. One of these cases, brought by twenty-six states and private plaintiffs, is pending before the Supreme Court and may very well be a landmark decision. Plaintiffs claim that Congress does not have power under Article I to impose the requirement.

There are two possible Article I bases for upholding the mandate: the Commerce Clause and the taxation provisions of the General Welfare Clause. Opponents deny that these are valid grounds. Their primary argument is that the Act either regulates or taxes inactivity and that allowing such a measure would give Congress limitless power to legislate. Further, if the mandate constitutes a tax under Article I, it must be an unapportioned “direct tax,” which the Constitution prohibits.

This article examines these challenges and others in detail. It concludes that the mandate can be justified under both the Commerce Clause (as augmented by the Necessary and Proper Clause) and the General Welfare Clause.

Keywords: Affordable Care Act, Patient Protection and Affordable Care Act, health care reform, Commerce Clause, General Welfare Clause, direct tax, Dep't of Health & Human Services v. Florida

Suggested Citation

Jay, Stewart, On Slippery Constitutional Slopes and the Affordable Care Act (April 2012). Connecticut Law Review, Vol. 44, No. 4, pp. 1133-1213, 2012, University of Washington School of Law Research Paper No. 2012-10, Available at SSRN: https://ssrn.com/abstract=2084340

Stewart Jay (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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