Today SCOTUSBlog has posted my contribution to its symposium on “The Constitutionality of the Affordable Care Act.” It begins:
The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to “regulate commerce . . . among the several states.” This is no surprise. The commerce power is the most used and most expansive federal power. Fights over the scope of the Commerce Clause take place on familiar terrain. In the end, however, the constitutionality of the mandate is likely to turn on the scope of a less explored provision, the Necessary and Proper Clause.