Abstract

http://ssrn.com/abstract=2218387
 
 

Footnotes (59)



 


 



No Small Feat: Who Won the Health Care Case (and Why Did so Many Law Professors Miss the Boat)?


Randy E. Barnett


Georgetown University Law Center

February 15, 2013

Florida Law Review, Vol. 65, pp. 1331-1350, 2013
Georgetown Public Law Research Paper No. 13-009

Abstract:     
In this essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, I describe five aspects of the Supreme Court’s decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood. (1) The Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Whether viewed from a formalist or realist perspective, Chief Justice Roberts’ reasoning was the holding in the case; (3) The Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) The newfound power to tax inactivity is far less dangerous than the commerce power that was advocated by the government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of published law professor opinions about the case, the author suggests that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism, a gestalt that can now be seen to carry over to a majority of the Roberts Court.

Number of Pages in PDF File: 21

Keywords: Commerce Clause, tax power, health insurance mandate, Congress, Supreme Court, constitutional law, insurance law

JEL Classification: K00, K30, K39

Accepted Paper Series


Download This Paper

Date posted: February 15, 2013 ; Last revised: October 28, 2013

Suggested Citation

Barnett, Randy E., No Small Feat: Who Won the Health Care Case (and Why Did so Many Law Professors Miss the Boat)? (February 15, 2013). Florida Law Review, Vol. 65, pp. 1331-1350, 2013; Georgetown Public Law Research Paper No. 13-009. Available at SSRN: http://ssrn.com/abstract=2218387

Contact Information

Randy E. Barnett (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)
HOME PAGE: http://www.randybarnett.com
Feedback to SSRN


Paper statistics
Abstract Views: 2,179
Downloads: 751
Download Rank: 16,488
Footnotes:  59

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.281 seconds