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
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, K39Accepted Paper Series
Date posted: February 15, 2013 ; Last revised: October 28, 2013
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