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Full-Text Articles in Law
Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian
Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian
Scholarship@WashULaw
After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …
Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld
Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld
Faculty Scholarship
A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.