Brief Observations: A Review of Obamacare Briefs and the Original Meaning of the Constitution

The heart of the Patient Protection and Affordable Care Act, popularly known as “Obamacare,” is an unprecedented mandate that individuals purchase health insurance. The briefs of the parties challenging Obamacare and their supporting amici argue persuasively that, if the Supreme Court hews to the original understanding of the Constitution, it will have no choice but to strike down the mandate. The Commerce Clause empowers Congress only to “regulate” commercial activity, not to coerce it into existence. And the mandate is by no means a “Law…for carrying into execution” the Commerce Clause power, and so finds no support in the Necessary and Proper Clause. The Framers would have considered the individual mandate far beyond the powers accorded to Congress. On that basis, it must be rejected.

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