Document Type


Publication Date

January 2011


The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to enact the individual mandate may be questioned only by returning to a pre-1937 understanding of Congress’ power under the Commerce Clause. The single federal district court that has declared the individual mandate of the PPACA unconstitutional utilized a pre-1937 approach to constitutional analysis in three fundamental respects. First, instead of evaluating the degree of the effect of the regulated conduct on interstate commerce, the district court draws a categorical distinction between “activity” and “inactivity” reminiscent of the distinction between “direct” and “indirect” effects that the Court expressly abandoned in the 1937 case N.L.R.B. v. Jones & Laughlin Steel. Second, instead of asking whether in enacting the PPACA Congress was encroaching on the traditional authority of the states, the court instead bases its decision on the principle of individual freedom. This reasoning implicitly revives the discredited concept of “economic substantive due process” – the notion that individuals have a constitutional right not to submit to laws governing economic decisions – an idea that the Court abandoned in the 1937 case of West Coast Hotel v. Parrish. Third, the district court ignores the longstanding rule developed after 1937 that Congress has the authority under the Necessary and Proper Clause to enact laws that are essential to make a broad, comprehensive scheme of federal regulation of interstate commerce effective, even if those laws govern conduct that is not economic in nature.

Publication Title

Journal of Legal Medicine

First Page


Last Page