The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.
Administrative Law | Constitutional Law | Law | Medical Jurisprudence
The Missing Due Process Argument,
The Health Care Case: The Supreme Court's Decision and Its Implications, Nathaniel Persily, Gillian E. Metzger & Trevor W. Morrison (Eds.), Oxford University Press
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