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Politics

Is the Individual Mandate Unconstitutional Under Existing Supreme Court Precedent?

Damon Root | 9.22.2010 11:33 AM

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Georgetown University law professor Randy Barnett argues yes in a forthcoming NYU Journal of Law and Liberty article he just posted to SSRN. From the abstract:

The "Patient Protection and Affordable Care Act" includes what is called an "individual responsibility requirement" or mandate that all persons buy health insurance from a private company and a separate "penalty" enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power.

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Damon Root is a senior editor at Reason and the author of A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution (Potomac Books). His next book, Emancipation War: The Fall of Slavery and the Coming of the Thirteenth Amendment (Potomac Books), will be published in June 2026.

PoliticsPolicyNanny StateSupreme CourtObamacareConstitution
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