“The Broccoli Test” for the individual mandate

November 16, 2011

Harvard law professor Einer Elhauge put up this OpEd yesterday in the New York Times outlining an interesting argument for the constitutionality of the ACA’s individual mandate clause. Here’s a snip:

But the argument that the commerce clause does not authorize the insurance mandate is beside the point. The mandate is clearly authorized by the “necessary and proper clause,” which the Supreme Court has held gives Congress the power to pass any law that is “rationally related” to the execution of some constitutional power.

I’ve argued before that the law can work without the individual mandate, given the right conditions including annual enrollment periods, affordable, standardized plans and guaranteed issue among others. I’m looking forward to hearing the arguments on both sides as the Supreme Court date gets closer.

Visit Extend Health — the nation’s largest private Medicare exchange.

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