When the Tenth Justice Doesn't Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius

Abstract:     
There was an argument that Solicitor General Donald B. Verrilli could have made — but didn’t — in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to self-insure. This argument would done a better job than the Solicitor General’s of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative justices’ primary concerns with upholding the mandate.

This Article hypothesizes that the Solicitor General made a strategic political choice to avoid this vision of the individual mandate because it would have provoked the strong political constraint against health care rationing — the freedom of health. It then considers the implications of that hypothesis for ongoing academic puzzles regarding the role of popular constitutionalism in Supreme Court decision-making and the role of the Solicitor General as an agent of either the Court or the President. The Article concludes that this story highlights a previously unexplored path for popular constitutionalism to impact Supreme Court holdings and that it highlights a particular circumstance in which the Solicitor General was emphatically an agent of the President, not the Court.

Number of Pages in PDF File: 50

Keywords: Obamacare, Commerce Clause, Necessary and Proper Clause, NFIB v. Sebelius, insurance mandate

JEL Classification: K32

working papers series