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American Society of Law, Medicine & Ethics




The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to this view, which the Eleventh Circuit largely hung its hat on in invalidating the individual mandate, there is inherent value to state power that ought to be preserved against national encroachments. I refer to this view as "libertarian federalism."

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