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How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum
How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).
After Sebelius …
The Constitutionality Of Mandates To Purchase Health Insurance, Mark A. Hall
The Constitutionality Of Mandates To Purchase Health Insurance, Mark A. Hall
O'Neill Institute Papers
Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined.
This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a …