Academic

Individual Mandate Decision (Updated again with more links & analysis)

By Lawrence Solum

The decision was just handed down.  As I read the opinion, there are three key take-away points:

1. The individual mandate is outside of Congress's power under the Commerce Clause & the Necessary and Proper Clause because (a) it is not itself a regulation of commerce, and (b) the decision not to purchase insurance is not "economic activity" that would trigger the substantial cumulative effects test of Wickard v. Filburn.
2. The District Court adopted a very narrow approach to severability: the opinion states that the court will sever only the "directly-dependent provisions."
3. The court grants declaratory relief and not injunctive relief.

Here is a link to the opinion.  Here is a link to Brad Joondeph's preliminary analysis on APA litigation blog.

Full post as published by Legal Theory Blog on December 13, 2010 (boomark / email).