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National Federation of Independent Business v. Sebelius: Five Takes

26 Pages Posted: 30 Apr 2013  

Glenn Harlan Reynolds

University of Tennessee College of Law

Brannon P. Denning

Samford University - Cumberland School of Law

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Date Written: April 29, 2013

Abstract

In this article, following our now-famous “Five Takes” format, we will look at some possible meanings and implications of the Supreme Court’s decision.

We first consider possible analogies between NFIB and two other famous cases whose opinions are held out as deftly straddling the line between principle and prudence: Marbury v. Madison and the Bakke case (Takes One and Two). Takes Three and Four examine the opinion though the lens of constitutional theory. We consider whether the decision, Chief Justice Roberts’s opinion especially, served what Charles Black called the Court’s “legitimating” function, quelling doubts about the Act’s constitutionality and, thus, its legitimacy. We further consider whether, in ultimately upholding the Act despite its relative unpopularity, Chief Justice Roberts’s opinion could be seen as an example of judicial restraint a la James Bradley Thayer. Finally, in Take Five, we consider that the peculiar construction of the opinion handed the Administration a somewhat Pyrrhic victory while laying the foundation for robust judicially-enforced limits on congressional power. A brief conclusion follows.

Suggested Citation

Reynolds, Glenn Harlan and Denning, Brannon P., National Federation of Independent Business v. Sebelius: Five Takes (April 29, 2013). Hastings Constitutional Law Quarterly, Vol. 40, No. 807, 2013. Available at SSRN: https://ssrn.com/abstract=2258177

Glenn Harlan Reynolds (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States
865-974-6744 (Phone)

Brannon P. Denning

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

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