New England Journal of Medicine
Health Law & Policy; Health Reform
Three separate cases raising constitutional challenges to the Affordable Care Act (ACA) are now under way, and together they present issues of great legal complexity. Yet although difficult legal questions must be resolved, a pivotal issue is whose version of events will serve as the judicial analytic filter. For reasons related to the very basis of Congress's constitutional power to enact health care reform, the fight is over whether the individual mandate to purchase health insurance (or pay a tax) is about regulating individuals' economic conduct or regulating their noneconomic status. Depending on which characterization of the facts prevails, the individual mandate either falls within or lies outside Congress's power to act.
Rosenbaum, S., Gruber, J. (2010). Buying health care, the individual mandate, and the Constitution. New England Journal of Medicine, 363, 401-403.