Document Type


Publication Date

Summer 2012

Publication Title

Vermont Law Review


healthcare, Affordable Care Act (ACA), Commerce Clause


One place where judges are becoming increasingly involved is in dormant Commerce Clause cases, and it would have been possible to issue the exact same holding in Sorrell by using dormant commerce analysis. To make the exact same challenge (it would have been up to the litigants, but) it would have been possible to present a similar challenge on dormant Commerce Clause grounds and to have said that this creates uneven regulation for pharmaceutical companies that need to craft different marketing approaches for different states according to different rules about what kinds of data they're allowed to use and not allowed to use. And that interferes with interstate commerce from the point of view of the pharmaceutical company. That holding would have been better in my opinion than the First Amendment holding' because it would have allowed Congress to step in and say, "Well, we want this approach or that approach to try to regulate health care." So from my perspective the Sorrell opinion is more problematic than a potential ACA opinion despite the fact that I like federal control better than state control. I like political control better than judicial control even more.