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In 2010, Congress passed the most controversial piece of social and economic legislation in decades: the Patient Protection and Affordable Care Act (popularly known as ObamaCare). Nancy Pelosi famously mocked an unserious reporter who asked what constitutional authority Congress possessed to pass the mandate provision of that act, which requires all Americans (subject to certain exceptions) to purchase health insurance. But the serious questions continued, and numerous legal challenges were filed. On August 12, 2011, the U.S. Eleventh Circuit Court of Appeals struck down the individual mandate in the most closely watched of these cases – a legal challenge brought by 26 states and the National Association of Independent Business (NFIB). This ruling created a split of opinion among the Circuit Courts, which all-but-guarantees that the Supreme Court will address the mandate’s constitutionality, with a possible decision expected as soon as June 2012.
The case is momentous because ObamaCare is unprecedented: it is the first time in history that the federal government has purported to require every citizen to enter into contract with a private company to buy a product or service. Is there any limit to what Congress can require? Does the Commerce Clause, which some argue has already been stretched beyond recognition, grant Congress the power to force citizens to purchase broccoli? What does the text of the Constitution and Supreme Court precedent suggest? When is the High Court likely to review the case? Will the Court strike down the mandate, but leave the rest of ObamaCare standing?
More About the Speakers
David Rivkin, Jr.
Partner, Baker & Hostetler LLP, and Lawyer for Florida and 25 other States
Director, Center for Legal & Judicial Studies, The Heritage Foundation
Partner, Jones Day, and Lawyer for the National Federation of Independent Business
Andrew M. Grossman