The 2-to-1 majority on the 11th Circuit appeals court rejected that view, ruling this month that Congress has no authority under the commerce clause to impose the mandate.
In an interview Sunday, the Virginia attorney general, Ken Cuccinelli, said he intended to base his challenge on two grounds: that the federal bill conflicts with a newly passed state law that says no Virginian may be compelled to buy insurance and that Congress does not have authority to impose the mandate under its powers to regulate interstate commerce, as Democrats contend.
MR. KATSAS: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law Talking Points Memo observes that the exchange suggests that Roberts is "skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress' power to impose the mandate springs from its broad taxing power".
Again, the plain evidence of the quandary is Clinton's refusal to address how she would impose the mandate on adult individuals.
Prominent constitutional scholars, including Reagan's former Solicitor General Charles Fried, believe that Congress had ample authority under the Commerce Clause -- as interpreted by longstanding precedent -- to impose the mandate as part of a comprehensive scheme for regulating our health care markets.
Of course, all that one can really say about the employer mandate is that it places all states at a competitive equilibrium, since the ACA by design aims to impose the employer mandate everywhere.
In the first case, National Federation of Independent Business v. Sebelius, the plaintiffs asserted that the law was unconstitutional because the Commerce Clause of the Constitution does not authorize Congress to impose the individual mandate.
The administration contends that Congress has ample authority to impose the insurance mandate, arguing that health care costs consume 17% of the American economy and are susceptible to the federal regulation of national commerce.
By implication these same justices are saying -- and may, in fact, rule later this spring -- that, while the feds lack power to impose the disputed mandate, state governments do not.
