In Constitutional Challenges
to the Health Care Mandate: Based in Politics, not Law, Professor
David Orentlicher expands the arguments supporting the individual mandate
discussed by Professor Hall, addressing both the context of the law
and the activity/inactivity distinction. Orentlicher then contends that
Professor Hall too quickly dismisses the taxing power as a constitutional
basis for the mandate, arguing instead that the taxing power provides
a constitutional foundation regardless of the congressional debate describing
it as a penalty. Professor Orentlicher concludes that given the
strength of the constitutional basis for the individual mandate under
current Supreme Court precedent, the backlash may be based more in politics
than in law, a reaction to the current economic climate rather than
a fair analysis of doctrine.
Volume 160 Issue 1 2012 Response