Is the Individual Mandate Unconstitutional Under Existing Supreme Court Precedent?


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.

Download it here.