The Private Action Requirement

This Symposium Essay assesses the constitutional challenge to the individual health insurance mandate. The principal argument against the mandate is that Congress is barred from regulating private inaction (or compelling action) under its Commerce Clause authority. Such a "private action" requirement must be judged by comparison to the state action doctrine of the Fourteenth Amendment, which is the only other general limitation on the power of Congress that distinguishes between acts and omissions. Measured against this principle, the attack on the individual mandate is without merit.