Boston University School of Law

 

The PPACA in Wonderland

Gary Lawson
Boston University School of Law

David B. Kopel
Independence Institute; Denver University, Sturm College of Law

Forthcoming in American Journal of Law & Medicine, 38 (2012): xx-xx
Boston University School of Law Working Paper 12-03

Abstract

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.”  The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences.  In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

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Suggested Citation:

Gary Lawson and David B. Kopel, "The PPACA in Wonderland " forthcoming in the American Journal of Law & medicine, 38 (2012): xx-xx..

 

GARY LAWSON Contact Information
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

Email: glawson@bu.edu

Phone: (617) 353-3812
Fax: (617) 353-3077

David B. Koepl Contact Information
Research Director
Independence Institute
13952 Denver West Parkway
Suite 400
Golden, Colorado 80401

Email: david@i2i.org

Phone: (303) 279-6536
Fax: (303) 279-4176
Home Page: http://www.davekopel.org

Adjunct Professor of Advanced Constitutional Law
Denver University, Sturm College of Law
2255 E. Evans Avenue
Denver, Colorado 80208

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