The Incredible Ordinariness of Federal Penalties for Inactivity
Issue Date
2012Author
Yung, Corey Rayburn
Publisher
University of Wisconsin Law School
Type
Article
Version
http://ssrn.com/abstract=1995586
Metadata
Show full item recordAbstract
Those arguing that the insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission, where a common law duty is violated, but also offenses related to registration, record keeping, possession receipt, preventive measures, nondisclosure, organization, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws that would be in jeopardy if the mandate were held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended—it is about the shape and scope of federal criminal law that has been in place for over fifty years.
Description
Full-text available at SSRN. See link in this record.
Collections
Citation
Corey Rayburn Yung, The Incredible Ordinariness of Federal Penalties for Inactivity, 3 WIS. L. REV. 841 (2012).
Items in KU ScholarWorks are protected by copyright, with all rights reserved, unless otherwise indicated.
We want to hear from you! Please share your stories about how Open Access to this item benefits YOU.