John T. Valauri (Northern Kentucky University – Salmon P. Chase College of Law) has posted Regulate/Mandate; Two Perspectives on SSRN. Here is the abstract:
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The debate and litigation over the constitutionality of the individual mandate during the past few years has revealed an utter lack of consensus on the bench and in the academy concerning the scope of and limits on the congressional commerce power. The parties here are divided into two different camps and see questions and cases from opposing perspectives which color and frame their perception and understanding of the topic. One perspective is a dynamic take on the New Deal Settlement which sees Congress as possessing essentially unlimited legislative power over commerce. The other perspective freezes doctrine in place and accepts the New Deal Settlement and cases decided before the individual mandate debate, but will go no farther than that.
This article takes up the question of whether Congress’ power to regulate commerce also includes the power to mandate commerce and uses it to reciprocally explore and illuminate both the individual mandate debate and the dueling perspectives which underlie and shape that debate. It does this by examining the ways in which the meaning and significance of the activity/inactivity distinction and the words “regulate,” “commerce,” “mandate” and “commandeer” are understood, analyzed and argued from the two perspectives and then trying to determine what progress toward consensus is attainable there.
I have long admired Valauri's work. Very interesting and recommended.
For my take on some of the issues raised by Valauri's paper, see The Legal Effects of NFIB v. Sebelius and The Constitutional Gestalt.