This article will appear in the University of Pennsylvania Law Review, 2011


Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no analytical help to be had from following the Supreme Court's lead and imputing "sovereignty" to the nation state, each of the fifty states, the people, the people of each state, tribes, and each individual. Sovereignty purports to be a scalar quantity, but such a quantity cannot be univocally predicated of these many different kinds of things. There is a better way forward. When the libertarian element in contemporary "conservativism" is judged against a traditional account of natural law and of the natural and positive-law rights it generates, there is room to ask whether the individual mandate is (1) within our particular government's scope and (2) good, in fact, for the people for whom the government exists. The paper argues that, in addition to being hopelessly ambiguous, claims to sovereignty are false.


Constitutional Law | Health Law and Policy | Insurance Law | Jurisprudence | Legislation

Date of this Version

February 2011