How NFIB v. Sebelius Affects the Constitutional Gestalt

59 Pages Posted: 26 Sep 2012 Last revised: 9 Oct 2014

Lawrence B. Solum

Georgetown University Law Center

Date Written: June 6, 2013

Abstract

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement.

This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author.

Keywords: Constitution, Gestalt, Individual Mandate, Commerce Clause, New Deal Settlement, Originalism, Stare Decisis

Suggested Citation

Solum, Lawrence B., How NFIB v. Sebelius Affects the Constitutional Gestalt (June 6, 2013). 91 Washington University Law Review 1 (2013); Georgetown Public Law Research Paper No. 12-152. Available at SSRN: https://ssrn.com/abstract=2152653 or http://dx.doi.org/10.2139/ssrn.2152653

Lawrence B. Solum (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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