Originally uploaded at SSRN.


The Supreme Court now has under advisement the landmark federal health care law case. Much attention has focused on the law’s minimum coverage provision—or so-called “individual mandate” — and, in particular, its constitutionality under the Commerce Clause and the Necessary and Proper Clause. In a separate and much lengthier article, I offer two main observations about the arguments made to the Court on that issue. First, I show that the challengers of the minimum coverage provision emphasized originalist reasoning in their briefs and oral arguments, while the federal government did not. Second, I explain why — contrary to the impression created by the contrasting submissions of the parties — there are in fact powerful, originalism-based reasons for concluding that the minimum coverage provision is constitutional. In this Essay, I offer a streamlined version of my earlier analysis, while also developing additional points along the way. Different observers who take different views of constitutional analysis will inevitably reach different conclusions about the constitutionality of the minimum coverage provision. All serious analysts, however, should take account of a critical, but previously undeveloped point: Originalism-based arguments that were not fully aired before the Court offer strong support for the provision’s constitutionality.