Regulate/Mandate; Two Perspectives

61 Pages Posted: 14 Feb 2013

See all articles by John T. Valauri

John T. Valauri

Northern Kentucky University - Salmon P. Chase College of Law

Date Written: February 14, 2013


The debate and litigation over the constitutionality of the individual mandate during the past few years has revealed an utter lack of consensus on the bench and in the academy concerning the scope of and limits on the congressional commerce power. The parties here are divided into two different camps and see questions and cases from opposing perspectives which color and frame their perception and understanding of the topic. One perspective is a dynamic take on the New Deal Settlement which sees Congress as possessing essentially unlimited legislative power over commerce. The other perspective freezes doctrine in place and accepts the New Deal Settlement and cases decided before the individual mandate debate, but will go no farther than that.

This article takes up the question of whether Congress’ power to regulate commerce also includes the power to mandate commerce and uses it to reciprocally explore and illuminate both the individual mandate debate and the dueling perspectives which underlie and shape that debate. It does this by examining the ways in which the meaning and significance of the activity/inactivity distinction and the words “regulate,” “commerce,” “mandate” and “commandeer” are understood, analyzed and argued from the two perspectives and then trying to determine what progress toward consensus is attainable there.

Keywords: commerce, mandates, regulation, constitutional law, NFIB

JEL Classification: K19

Suggested Citation

Valauri, John T., Regulate/Mandate; Two Perspectives (February 14, 2013). Available at SSRN: or

John T. Valauri (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States
859-572-5387 (Phone)

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