Congress’s enactment of comprehensive healthcare reform legislation last year was the culmination of one round of an intense debate that continues today. The second round began the same day that the first round ended, when President Obama signed the legislation. In this second round, the locus of debate has shifted from Congress to the courts, which are processing a slew of lawsuits filed immediately after enactment.

One of the most prominent is Virginia v. Sebelius. The lawsuit presents on its face a prominent and critically important question of federalism: Did Congress exceed the limits of its enumerated legislative powers by enacting the individual mandate, which requires individuals to have insurance or pay a penalty for failing to have it? But the lawsuit also presents a less recognized but equally important question of separation of powers: Is the federal judiciary authorized to rule on Virginia’s claim that the individual mandate is unconstitutional?

Document Type


Publication Date

Summer 2011


This essay was adapted from Prof. Walsh's Stanford Law Review article, The Ghost that Slew the Mandate.

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