The United States´ Supreme Court and the Federalism of the Welfare State. With regard to the constitutionality of the sanitary reform

Abstract

Abstract:
This article studies the doctrinal and judicial debate on the constitutionality of the Health Care Reform passed by the U. S. Congress. After exposing the foundations of the reform, the article focuses on the new profiles of the American cooperative federalism that stem from the interpretation that the Supreme Court has done in the National Federation of Independent Business v. Sibelius of three key clauses for the evolution of the territorial distribution of powers in the U. S. A: the Commerce Clause, the Necessary and Proper Clause and the Spending and Taxing Clause. Furthermore, this article reflects on which should be the degree of deference of judges to the legislator when it comes to enforce the rules of territorial power in judging the constitutionality of laws with particular democratic relevance. In light of the libertarian criticism on the reform, the article ends with an analysis on how the categories of federalism are increasingly displacing the Bills of Rights in the defense of certain economic freedoms in front of federal social programs.