Realism Over Formalism and the Presumption of Constitutionality: Chief Justice Roberts’ Opinion Upholding the Individual Mandate

16 Pages Posted: 5 Oct 2012 Last revised: 28 Jun 2013

Wilson Ray Huhn

University of Akron - School of Law

Date Written: October 4, 2012

Abstract

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.

Keywords: general welfare clause, affordable care act, constitutional avoidance, presumption of constitutionality

JEL Classification: K10

Suggested Citation

Huhn, Wilson Ray, Realism Over Formalism and the Presumption of Constitutionality: Chief Justice Roberts’ Opinion Upholding the Individual Mandate (October 4, 2012). 46 Akron Law Review 117, 2013; U of Akron Legal Studies Research Paper No. 12-18. Available at SSRN: https://ssrn.com/abstract=2156842

Wilson Ray Huhn (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States

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