Health Care Reform: Has the Supreme Court Already Embraced the Individual Mandate?

Abstract

Is President Obama’s health-care law dead? Ever since the United States Supreme Court heard arguments about its constitutionality in late March, speculation has been rife that, at a minimum, the Justices will strike down the individual mandate. The predictions rest on a single assertion: that individuals have never before been required, under the authority of the Commerce Clause, to purchase a product or service from a private party. The assertion is mistaken. There is not only clear precedent for the mandate, but conservative, centrist and liberal Justices alike have embraced the precedent in principle. This includes nearly every member of the current Court, including the Chief Justice and, in order of seniority, Associate Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer and Alito. It also includes former Chief Justice Rehnquist and other eminent Justices from the past. On the current Court, only Justices Sotomayor and Kagan have never had the opportunity to weigh in on the issue.