The Individual Mandate as Health Care Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius

35 Pages Posted: 29 Aug 2012 Last revised: 19 Sep 2013

Abigail R. Moncrieff

Boston University - School of Law

Date Written: August 27, 2012

Abstract

There was an argument that the Obama Administration's lawyers could have made — but didn’t — in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to self-insure. This argument would done a better job than the Obama Administration's of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative justices’ primary concerns with upholding the mandate. This Article lays out this forgone defense of the individual mandate.

Keywords: Obamacare, Commerce Clause, Necessary and Proper Clause, NFIB v. Sebelius, insurance mandate

JEL Classification: K32

Suggested Citation

Moncrieff, Abigail R., The Individual Mandate as Health Care Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius (August 27, 2012). American Journal of Law and Medicine, Vol. 39, 2013; Boston Univ. School of Law, Law and Economics Research Paper No. 12-44; Boston Univ. School of Law, Public Law Research Paper No. 12-44. Available at SSRN: https://ssrn.com/abstract=2137065 or http://dx.doi.org/10.2139/ssrn.2137065

Abigail R. Moncrieff (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
#1170D
Boston, MA 02215
United States
617-353-2212 (Phone)

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