Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

There are many reasons to think that the Supreme Court will provide an up/down determination regarding the constitutional validity of the individual mandate. Existing Commerce Clause doctrine is shaped in a way that discourages as-applied challenges, prior successful challenges under the Commerce Clause have been facial challenges, and the as-applied challenge in Raich was soundly rejected. In light of all this, odds are that the Supreme Court will either find the individual mandate constitutional on its face, following cases like Wickard and Raich, and foreclosing the possibility of as-applied challenges, or unconstitutional on its face, following cases like Lopez and Morrison, and foreclosing the possibility that it could be constitutionally applied in some instances.But not necessarily. Because the Court is being asked to articulate a principle for the first time, it is freer to capitalize on its comparative competence, follow the path illuminated by Judge Sutton, and render a decision that lowers the stakes rather than raises them.