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Academic round-up

Oral arguments on the Affordable Care Act are just around the corner.  Academics have devoted considerable attention to this subject already, and there is surely more to come.  Below are a few highlights from what is shaping up to be a rich body of literature on the constitutional questions before the Court.

In a strongly worded exchange on Yale Law Journal Online, Andrew Koppelman argues that the Affordable Care Act’s mandate requiring most individuals to purchase health insurance is “obvious[ly] constitutional” because regulating health care is within Congress’s Commerce Clause power, and thus requiring that individuals purchase minimum coverage is justified by Congress’s constitutional authority to “make all Laws which shall be necessary and proper” to carry out that constitutionally permissible goal.  Gary Lawson and David Kopel respond that the Necessary and Proper Clause cannot do the heavy lifting that Koppelman assigns it, citing historical evidence to show the original meaning of that Clause is too narrow to justify such sweeping legislation.  Koppelman’s reply, in which he questions both Lawson and Kopel’s understanding of the Necessary and Proper Clause, as well as the relevance of their “new” originalist insights, is available here.

The parties challenging the Affordable Care Act argue that if the Court upholds the individual mandate as a valid exercise of Congress’s Commerce Clause power, then there are no constraints on Congress’s ability to pass legislation requiring the purchase of goods and services (the infamous “Can-Congress-make-us-buy-broccoli?” hypo).  In an essay entitled “Four Constitutional Limits that the Minimum Coverage Provision Respects,” Neil Siegel tackles this argument by listing four restrictions on Congress’s Commerce Clause power that he asserts are consistent with the view that individual mandate is constitutional.  Siegel contends that Congress does not have the authority:  “(1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights; (3) to regulate at all, including by imposing a mandate, unless it reasonably believe that the regulation will ameliorate a significant collective action problem involving multiple states; or (4) to impose an economic mandate unless it reasonably believes that other regulator means would be less effective or more coercive.”  Accordingly, Siegel concludes that the Court can uphold the individual mandate without eviscerating the constitutional principle that Congress has only the limited powers enumerated in the Constitution.

The Court will also be hearing argument on the threshold question of whether the tax Anti-Injunction Act (TAIA) prevents it from deciding the case on the merits.  That statute bars any “suit for the purpose of restraining the assessment or collection of any tax.”  Michael Dorf and Neil Siegel have posted an essay on SSRN, available here, arguing that the TAIA only bars suits that have the “immediate purpose” of restraining the collection of taxes.  The constitutional challenges to the Affordable Care Act do not qualify, since their immediate purpose is not to avoid the penalties but rather to invalidate the statute’s mandate requiring individuals to buy insurance.  (The private respondents in HHS v. Florida make a similar argument in their brief.)

In contrast, Kevin Walsh has published an essay declaring that the TAIA presents a “serious potential obstacle” to the Supreme Court’s ability to reach the merits. Yet he notes that the parties on both sides of the case want the issues decided, which leads him to speculate about why Congress has not enacted legislation to remove this potential roadblock.

This post is far from comprehensive, and I’m sure I’ve left out some terrific contributions to the debate, so I will return to this subject again in the near future for another round-up.

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Mar. 23, 2012, 9:40 AM),