Publication Date
3-2011
Document Type
Article
Abstract
Under current constitutional law, I do not think this is a close question. It is quite clear that this law is constitutional because it exercises Congress's power. Lest this be taken as the observation of a liberal law professor, Charles Fried-whom no one would call a liberal law professor, former Solicitor General in the Bush Administration-said on Fox television that he had recently been to Australia and purchased a kangaroo hat, and he would eat that hat if the Supreme Court were to declare this law unconstitutional. While I do not find a hat made out of kangaroo skins to be politically correct, and I would be amused to watch Professor Fried eat the hat, I think he is going to be spared this indigestion. He is absolutely right that it is hardly a colorable claim that this law is unconstitutional. ...
I think the real objection to the individual mandate has nothing to do with the scope of Congress's power. It is really an objection to forcing people to buy insurance if they do not want to buy insurance. There is an unarticulated sense that individuals should have a liberty interest to not have health insurance if they do not want to. But not even the strongest opponents of the legislation make that argument, because in post-1937 constitutional law, that is not a colorable argument. The Supreme Court has made it clear in terms of due process that the government can regulate the economy so long as it has a rational basis for doing so. Certainly, Congress has a legitimate interest in making sure that everybody in the country has health care, and it is reasonable to require that everybody either purchase it or pay something to cover the costs.
Recommended Citation
Chemerinsky, Erwin
(2011)
"A Defense of the Constitutionality of the Individual Mandate,"
Mercer Law Review: Vol. 62:
No.
2, Article 9.
Available at:
https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss2/9