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Copyright (c) 2012 Loyola University Chicago School of Law, Beazley Institute for Health Law and Policy
Annals of Health Law

ARTICLE: The Affordable Care Act Individual Coverage Requirement: Ways to Frame the Commerce Clause Issue

ASLME Special Edition, 2012

Annals of Health Law

21 Ann. Health L. 45


Wendy K. Mariner, J.D., LL.M., M.P.H.*


The central constitutional challenge to the Patient Protection and Affordable Care Act ("ACA") has been to the requirement that American citizens and legal residents maintain health insurance coverage, whether from public programs or private insurers. 2 The challengers argue that this requirement is beyond Congress's power under the Commerce Clause, 3 because it regulates individuals within a single state and not having health insurance is neither economic nor activity. 4

This is indeed a novel issue, but it may not be the correct one. The challengers' argument relies on part of a particular three-category formulation of what Congress can regulate by exercising its commerce power, first stated in this particular formulation in Perez v. United States:

The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods ... or of persons who have been kidnapped ... . Second, protection of the instrumentalities of interstate commerce, as, for example, the destruction of an aircraft ... , or persons or things in commerce, as, for example, thefts from interstate shipments ... . Third, those activities affecting commerce. 5
Challengers argue, and the federal government and most courts seem to accept, that only the third category - activities affecting commerce - is at issue; they have not yet explicitly addressed the first two. 6 However, there may be other ways to ...
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