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Regulate/Mandate: Two Perspectives, John T. Valauri

John T. Valauri

The debate and litigation over the constitutionality of the individual mandate during the past few years has revealed an utter lack of consensus on the bench and in the academy concerning the scope of and limits on the congressional commerce power. The parties here are divided into two different camps and see questions and cases from opposing perspectives which color and frame their perception and understanding of the topic. One perspective is a dynamic take on the New Deal Settlement which sees Congress as possessing essentially unlimited legislative power over commerce. The other perspective freezes doctrine in place and accepts …