HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, February 3, 2012

The Individual Mandate, Downer Pigs and Federalism

With all of the attacks on the federal government’s power to mandate the purchase of health care insurance, one might have expected more criticism of the Supreme Court’s decision last week in National Meat Association v. Harris.


In that case, a unanimous Court invalidated California’s effort to exclude unhealthy, "downer" pigs, sheep and goats from the food supply, on the ground that Congress had reserved regulatory authority over slaughterhouses to the federal government. Even though California’s law was prompted by video footage documenting the ineffectiveness of federal regulation, the Court denied Americans the ability to turn to their state legislatures for protection.

Why so little concern? Perhaps the health care mandate is more salient, while the risks from food poisoning seem remote. Still, from a federalism perspective that worries about an expansive national government, the preemption of state regulation seems particularly troublesome in National Meat Association. State governments traditionally have assumed responsibility for protecting the public health. After the federal government has seized that responsibility and failed to carry it out properly, critics of federal power should be especially angry.

From my perspective, it would be better if efforts to contain Congress were directed at policies that compromise the public's health rather than at those that will enhance it.


[cross-posted at The Faculty Lounge]

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