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.
