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commerce clause, individual mandate, health reform, PPACA, game theory


While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come.

Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, as set forth in Lopez v. United States, permits the individual mandate. This Article approaches the constitutionality of that provision from a novel perspective, one that proves essential in applying past Commerce Clause decisions, including Lopez, to the PPACA and in appreciating the real stakes involved in upending the individual mandate. By analyzing the Court’s Commerce Clause jurisprudence through the lens of game theory, we expose common features of games that have resulted in limiting state powers on the dormant side of the Commerce Clause doctrine, and of sustaining and restricting congressional powers on the affirmative side. Applying such games as the “prisoners’ dilemma,” and “the battle of the sexes,” yields critical insights about the nature and limits of state and federal regulatory powers.

Our game theoretical analysis shows that while debates have centered on the role of the individual mandate in solving a micro-level separating game among low-risk individuals who do not purchase insurance and high-risk individuals who cannot afford it, a more compelling account focuses on the Act’s role in solving a macro-separating game played among the states. By comparing the PPACA to several important policy splits among states- public accommodations laws, abortion funding, the death penalty, civil remedies for violent crime against women, and same sex marriage- we demonstrate that the Act, including the individual mandate, fits well within those cases for which congressional commerce power is justified to avoid the risk that competing state policies will force other states into a problematic separating game thereby undermining the selected regulatory policy. Our analysis reconciles congressional power to implement the PPACA with the post-New Deal expansions and recent retrenchments of Congress’s Commerce Clause powers.

Publication Citation

100 Georgetown Law Journal 1117 (2012).


Health Law and Policy | Insurance Law