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

21 Pages Posted: 15 Feb 2013 Last revised: 28 Oct 2013

Date Written: February 15, 2013


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.

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

JEL Classification: K00, K30, K39

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:

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)


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