My Article on Slippery Slope Issues in the Individual Mandate Litigation

I have recently posted to SSRN a forthcoming article on slippery slope issues in the individual mandate litigation. The article is part of a symposium in Law and Contemporary Problems. Here’s the abstract:

The 2010 Affordable Care Act’s individual mandate has given rise to one of the most important constitutional disputes in recent decades. The provision in question requires that most Americans purchase health insurance by 2014.

Both sides in the mandate litigation have argued that we will be sliding down a dangerous slippery slope if their opponents prevail. Despite the prominent role of slippery slope arguments on both sides of the case, the extensive academic commentary on the mandate litigation does not yet include a comprehensive analysis of this aspect of the dispute. This article seeks to fill the gap in the literature.

Part I considers the slippery slope arguments against the individual health insurance mandate. I conclude that the federal government’s arguments really do lead to an unlimited congressional power to impose almost any mandate. The same result occurs under all three of the government’s major arguments for the constitutionality of the mandate: claims that the mandate is authorized by the Commerce Clause, the Tax Clause, and the Necessary and Proper Clause. In addition, there is a substantial likelihood that Congress will take advantage of an unconstrained power to impose mandates for the purpose of benefiting favored interest groups.

Part II provides a similar assessment of slippery slope arguments put forward by defenders of the mandate, focusing on fears that striking it down would lead to the restoration of Lochner, the unraveling of precedents upholding major post-New Deal government programs, and prevent Congress from enacting important regulatory measures in the future. Such logical implications do not arise from the most likely path by which the Court might strike down the mandate: holding that Congress cannot use the Commerce Clause and Necessary and Proper Clause to regulate “inactivity,” defined as imposing mandates merely on the basis of one’s presence in the United States. Such a decision would leave intact all existing precedents and major government programs. And it would not even come close to restoring Lochner. It is, however, possible that a decision striking down the mandate would lead to incrementally more vigorous enforcement of structural limits on congressional power at the margin.

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