So argued Professor James Ely today in a symposium on the PPACA sponsored by the Charleston School of Law.  And a federal district court judge agreed in a case in which he and fellow academics brought in U.S. District Court for the Eastern District of Virginia.  Brian Galle, Assistant Professor of Law, Boston College Law School presented an opposing point of view.   I found Professor Ely’s position more convincing, as did Judge Hudson.

There is one case going the other way and we will have to see how the matter turns on on appeal.  Aside from the ethereal world of constitutional law, we must also ask if the individual mandate is enforceable as a practical matter.  Seriously, do you really think that the tax can be collected against the vast majority of uninsured Americans?  Constitutional or not, the individual mandate is a bankrupt idea as Massachusetts’ experiment proves for anyone interested in empirical data.

For my part, I discussed the internal appeals and external review regulations as a part of a panel discussion on how the PPACA affects the practice of law.  The interim final regulations on this topic make some huge changes in current law that are likely unwarranted by the statute.  I will review some highlights in my next newsletter.

For now, congratulations to the Charleston School of Law faculty and their Federal Courts Law Review on an excellent contribution to scholarship and debate on this important policy issue.