Originally uploaded at SSRN.


In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to spark challenges to other federal laws on the theory that they likewise mandate individuals or entities to take certain actions. Federal laws founded on the commerce power, for example, require mine operators to provide workers with safety helmets and (at least as a practical matter) require mine workers to wear them. Some analysts will say that laws of this kind are distinguishable fromthe health care mandate because they reach only actors who have injected themselves into commerce by engaging in mining. There is a problem with this distinction, however, because the health care mandate itself does not apply to everyone. Instead, it takes aim only at citizens who inject themselves into commerce to such an extent that they generate a minimum annual income.

In this Article, I seek to untangle the Court’s new anti-mandate principle. I suggest that future cases implicating this principle will present two central questions. First, courts will have to decide whether the challenged law embodies a mandate. Second, if it does, they will have to determine whether that mandate is sustainable under thecommerce power, notwithstanding the limits laid down in the health care case. I argue that answering this second question will require consideration of four analytical touchstones — what I call (1) escapability, (2) relatedness, (3) invasiveness, and (4) policy sensitivity. The operation of these four factors — each of which presents its own analytical complexities — signals the difficulties that courts will face in future mandate cases. And the presence of these difficulties highlights the need for the sort of structured analysis I offer here.