Originally uploaded at SSRN.


The Supreme Court has now received the briefs and heard the oral arguments in the landmark case that concerns the federal health care law. 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. This Article offers two observations about the arguments made to the Court on that issue. First, it shows that the challengers of the minimum coverage provision adopted a strategy of emphasizing originalist reasoning, while the federal government focused its defense of the law on practical considerations and modern precedents. This difference in tactics, it is suggested, may prove to be of great consequence to the outcome of the case in light of the current Court’s marked receptivity to originalist analysis. Second, the Article suggests that – contrary to the impression created by the submissions of the parties – there are in fact powerful originalism-based reasons for concluding that the minimum coverage provision is constitutional. Indeed, according to the treatment offered here, these arguments have their roots in in all key elements of originalist discourse – the text of the Constitution, the background understandings that gave rise to the relevant clauses, and early congressional and judicial precedents. To be sure, different observers who take different views of constitutional analysis will reach different conclusions about the constitutionality of minimum coverage provision. But this Article contends that originalism-based arguments that were not fully aired before the Court cut strongly in favor of the provision’s constitutionality.