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The Likely Impact of National Federation on Commerce Clause Jurisprudence

27 Pages Posted: 22 Feb 2014  

Robert J. Pushaw

Pepperdine University - School of Law

Grant Nelson

Pepperdine University - School of Law

Date Written: March 20, 2013

Abstract

In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). At issue in that case was the validity of the “Individual Mandate” (IM) which forces Americans to buy medical insurance or pay a “penalty.” Although the Court held that the IM had exceeded the bounds of the Commerce Clause, the Court found that the IM could be construed as a “tax” on those who did not buy medical insurance and, therefore, could be sustained under Congress’s power to “Lay and Collect Taxes.” In this article, Professors Pushaw and Nelson analyze the likely impact of the Court’s decision on Commerce Clause jurisprudence. Part I provides an overview of Commerce Clause precedent. Part II summarizes National Federation. Part III identifies the key problems with this decision and argues that its real-world effect will likely be minimal. Part IV proposes a different approach to the Commerce Clause that is rooted in its text, history, and underlying political theory. Those legal materials reveal that Congress can regulate only the voluntary sale of goods or services and all accompanying activities geared toward the market, and accordingly cannot mandate the purchase of insurance or anything else.

Keywords: individual mandate, Commerce Clause, Obamacare, sale of goods, Affordable Care Act

Suggested Citation

Pushaw, Robert J. and Nelson, Grant, The Likely Impact of National Federation on Commerce Clause Jurisprudence (March 20, 2013). Pepperdine Law Review, Vol. 40, p. 975, 2013; Pepperdine University Legal Studies Research Paper No. 2014/1. Available at SSRN: https://ssrn.com/abstract=2399131

Robert J. Pushaw (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-6318 (Phone)

Grant S. Nelson

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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