Can Congress Make You Buy Broccoli; and Why This Question Matters

The continuing uncertainty over the constitutionality of the Affordable Care Act (ACA), as demonstrated by conflicting trial court rulings and scholarly commentaries, begs the question of why deciding whether the "individual mandate" is constitutional is so difficult. I will summarize all of the court decisions to date on this issue (there is likely to be at least one, and possibly two US Court of Appeals decisions on the ACA by the time of the meeting)to: (1) identify the central and likely outcome-determinative issue that the US Supreme Court will have to rule on when the ACA gets to them; and (2) suggest the strongest argument(s)the Court could use to uphold the constitutionality of the ACA's individual mandate. It will also be helpful to understand the relevance of past US Supreme Court decisions ruling that there is "no federal police power," and Commerce Clause jurisprudence should not be expanded to create one.