When Congress drafted the Patient Protection and Affordable Care Act (PPACA), Democratic lawmakers and most legal scholars had good reason to be confident of its constitutionality. Under long-established precedent, Congress clearly has the authority, if wanted, to enact a single-payer socialized insurance system using its powers to tax and spend for the “general welfare.” Far short of this, PPACA’s complex blend of regulations, subsidies, and an individual mandate is vastly more protective of insurance markets and individual freedoms than any “Medicare for All” scheme would have been. The idea for an individual mandate originated with Republican lawmakers, who never questioned its constitutionality until now. Congress has nearly unbridled authority to regulate products sold in or affecting interstate commerce, and health insurance is clearly one such product. Further, considering the well-understood economics of health insurance, a mandate to obtain insurance is obviously part and parcel of regulating how insurers design, price, and sell their products.

Something went wrong on the way to the courthouse, however. District courts in Virginia and Florida have ruled that Congress lacks the constitutional authority to require legal residents to obtain health insurance. Three other federal judges have upheld federal authority in cases that special interest groups and individual litigants brought.

Despite the split outcomes (which fell along the party lines of the judges’ appointing presidents), these courts agreed on several issues. No court thus far has found a violation of individual rights protected by the Bill of Rights, and no court so far has accepted (or indicated much support for) the government’s position that Congress’s tax power supports the mandate. In Florida ex rel. McCollum v. U.S. Department of Health & Human Services, the Northern District of Florida rejected the states’ arguments that forcing them to implement key PPACA provisions violates the Tenth Amendment. Thus the Commerce Clause and the ancillary Necessary and Proper Clause will be the primary focus of ongoing litigation over the constitutionality of health care reform. Conservative legal scholars who have previously criticized the expansive scope of federal commerce power see in this litigation the opportunity to impose new limits on its capaciousness. Accordingly, the Commerce Clause arguments merit close attention in order to understand their strengths, weaknesses, and implications for other areas of constitutional doctrine and public policy.