Balkinization  

Thursday, March 22, 2012

The Affordable Care Act and the National Defense

Guest Blogger

Philip Bobbitt

[The following is an argument for the constitutionality of the individual mandate, written in the form of an amicus brief. It argues that Congress could reasonably conclude that the individual mandate serves vital interests of national defense.]

Brief of Professor Philip Bobbitt on the Individual Mandate

SUMMARY OF ARGUMENT

Various Circuit Courts have addressed the constitutionality of the Health Care And Education Reconciliation Act of 2010 (hereinafter HC ERA), and determined whether the Commerce power allocated to Congress by Article 1, Section 8 was sufficient to support the individual mandates to purchase healthcare required By the Act.

This brief takes no position on this matter. Rather, it makes two, separate but related arguments: (1) that such mandates are an example of an increasingly important method of taxing and spending; (2) that it can be persuasively shown that Congress could rationally have concluded that such a means was an appropriate method of providing for the “common Defence … of the United States.” U.S. Const. art. I, § 8, cl. 1.

Philip C. Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security at Columbia Law School. You can reach him by e-mail at bobbitt at law.columbia.edu

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