Safeguarding Federalism by Saving Health Reform: Implications of National Federation of Independent Business v. Sebelius

83 Pages Posted: 4 Sep 2013

Date Written: September 3, 2013


On June 28, 2012, the Supreme Court issued one of its most anticipated decisions in National Federation of Independent Business v. Sebelius (“NFIB”) - the constitutional challenge to the Patient Protection and Affordable Care Act (“ACA”). Two main goals of the ACA - increasing private insurance coverage and the Medicaid expansion - have been the targets of a number of legal challenges that reached the Supreme Court in NFIB. The first, and the one that has received the most attention, was the challenge to the individual mandate as exceeding Congress’s commerce and taxing powers. The second was a challenge to the structure of the Medicaid expansion as coercive in violation of the Tenth Amendment limit on Congress’s spending power.

Reform opponents claimed that upholding the mandate would lead to an unprecedented expansion of federal power. They shaped the dominant narrative that presented federal power as an inherent threat to state sovereignty and individual liberty. In this narrative, NFIB presented the Court with a dichotomous choice: Would the conservative majority - Chief Justice Roberts, along with Justices Alito, Scalia, Thomas, and Kennedy - take this opportunity to further limit federal power, or could the liberal wing of the court sway one of the other Justices (most wrongly predicted Justice Kennedy) to uphold the mandate? The Court surprised many by answering “yes” to both.

The Court upheld the mandate as a constitutional exercise of the taxing power and preserved the Medicaid expansion as an option for states, but Chief Justice Roberts’s approach defied the simplistic narrative that dominated commentary before the decision. By upholding the mandate and the ACA, the Court has preserved a powerful new version of cooperative federalism in healthcare - one that creates a federal platform for state experimentation, innovation, and regulation to facilitate meaningful choice in the private health-insurance market. At the same time, however, Chief Justice Roberts penned certain parts of the opinion that may advance more traditional federalist aims of limiting the commerce and spending powers.

Suggested Citation

Clark, Brietta R., Safeguarding Federalism by Saving Health Reform: Implications of National Federation of Independent Business v. Sebelius (September 3, 2013). Loyola of Los Angeles Law Review, Forthcoming, Loyola-LA Legal Studies Paper No. 2013-30, Available at SSRN:

Brietta R. Clark (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1494 (Phone)
213-736-3769 (Fax)

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