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Somin on Implications of NFIB v. Sebelius Ruling

From the point of view of Professor Ilya Somin, The Supreme Court's decisions in the historic NFIB v. Sebelius case concerning provisions of the Affordable Care Act constitutes one of the most important federalism rulings in modern history, and one that has important implications for the future.

Writing in the Harvard Health Policy Review, Somin suggests that Chief Justice Roberts' Commerce Clause and Necessary and Proper reasoning might put constraints on Congress' power to impose other mandates.

"The threat of such mandates is far from purely theoretical," says Somin. "Many industries could potentially lobby for laws requiring people to purchase their products, and Congress has a long history of enacting special interest legislation. The political process cannot be relied on to consistently prevent the enactment of future mandates that benefit narrow interest groups at the expense of the general public."

Potential benefits of Roberts' reasoning upholding the Act's insurance mandate under the Tax Clause are partially undercut, Somin says, by the reality that almost any purchase mandate could potentially be restructured to fit his definition of a tax.

"To qualify, the mandate would have to be enforced only by a monetary fine that is collected by the IRS, is not too high, and levied without regard to criminal intent," Somin explains. "At the very least, however, such future mandates could not be enforced by threats of imprisonment or by extremely high monetary penalties."

In addition, Somin says the Court's invalidation of the Medicaid condition makes it possible many states will refuse to expand Medicaid coverage. "What is not clear is whether any other federal conditional grant programs may be invalidated as coercive," he says.

Somin concludes that the political and legal struggle over federalism will continue, absent consensus on the constitutional limits of federal power, within the Court and without.

Assessing the Health Care Decision, Harvard Health Policy Review, Fall 2012, Volume 13, Number 2. By Ilya Somin.

Excerpt:
"Some defenders of the mandate have advanced the argument that the Constitution gives Congress the power to address "national problems," especially those that states supposedly cannot address on their own. But nowhere in the Constitution is Congress given a blank check to solve any and all alledged national problems. If Congress were intended to have such a sweeping power, there would be no need for the detailed enumeration of numerious specific congressional powers in Article 1. The Framers could instead have replaced the eighteen clauses of Article with a single catch-all National Problems Clause. Moreover, to the extent that this argument relies on the idea that states cannot adopt an individual mandate on their own, it runs into the reality that they are entirely capable of doing so, as Massachusetts did in 2006."

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