by William A. Jacobson
- This is the big case involving 26 states.
We first conclude that the Act’s Medicaid expansion is constitutional.
Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause.
Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.
The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms.
It cannot be denied that the individual mandate is an unprecedented exercise of congressional power.
The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.
Is this law dead yet? It is like Dracula. You are going to need a wooden stake to kill this thing.
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