NFIB V. Sibelius: Proportionality in the Exercise of Congressional Power

15 Pages Posted: 3 Jan 2013 Last revised: 22 Nov 2013

See all articles by David Orentlicher

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: November 23, 2012


With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anti-coercion limit to the Spending Clause power.

When it recognized an anti-coercion limit for ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anti-coercion principle. It also indicates how this new principle can address a long-standing problem with the federal exercise of the Commerce Clause power — the federalization of local crime.

Specifically, I argue first that we can best understand the Court’s anti-coercion principle not by parsing the text of its spending power analysis in isolation but by identifying a common strand of principle that the spending power analysis shares with the Court’s analysis of the individual mandate to purchase health care under the federal taxing power. Both analyses suggest a common principle of proportionality for the exercise of federal powers.

If that is true for a Medicaid expansion enacted under the spending power and an individual mandate enacted under the taxing power, it also may — and should — be true for a criminal prohibition enacted under the commerce power, the primary source of authority for federal criminal statutes. If so, then the Court could find that Congress exceeds its authority when it imposes more severe sentences than do states for misconduct that is essentially local in nature.

Keywords: Affordable Care Act, health care reform, spending clause, taxing power, commerce clause, federalization of crime

JEL Classification: I18, K14, K19

Suggested Citation

Orentlicher, David, NFIB V. Sibelius: Proportionality in the Exercise of Congressional Power (November 23, 2012). Utah Law Review, Vol. 2013, No. 5; Indiana University Robert H. McKinney School of Law Research Paper No. 2012-32. Available at SSRN: or

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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