Realism Over Formalism and the Presumption of Constitutionality: Chief Justice Roberts’ Opinion Upholding the Individual Mandate
Wilson Ray Huhn
University of Akron - School of Law
October 4, 2012
46 Akron Law Review 117, 2013
U of Akron Legal Studies Research Paper No. 12-18
In National Federation of Independent Business v. Sebelius Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part III-C of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be construed in such a way as to render it constitutional. The confluence of realist analysis and the presumption of constitutionality resulted in a decision ruling that the Court should uphold the individual mandate as a proper exercise of Congress’s power to tax.
Number of Pages in PDF File: 16
Keywords: general welfare clause, affordable care act, constitutional avoidance, presumption of constitutionality
JEL Classification: K10Accepted Paper Series
Date posted: October 5, 2012 ; Last revised: June 28, 2013
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