In National Federation of Independent Business v. Sebelius, the Supreme Court found that the Patient Protection and Affordable Care Act-popularly known as "Obamacare"-was an unconstitutional assertion of Congress' power to regulate commerce among the several states, but was nonetheless sustainable under Congress' power to tax. This piece looks at some possible meanings and implications of the Supreme Court's decision. Takes One and Two analogize Sebelius and two other famous cases-Marbury v. Madison and Regents of the University of California v. Bakke-whose opinions are held out as deftly straddling the line between principle and prudence. Takes Three and Four examine the opinion though the lens of constitutional theory, considering in particular whether the decision-Chief Justice John Roberts' opinion especiallyserved what Charles Black called the Court's "legitimating" function: quelling doubts about the Act's constitutionality and, thus, its legitimacy. Finally, in Take Five, this piece considers whether the opinion's peculiar construction handed the Administration a somewhat Pyrrhic victory while laying the foundation for robust judicially enforced limits on congressional power.
Glenn H. Reynolds and Brannon P. Denning,
National Federation of Independent Business v. Sebelius: Five Takes,
40 Hastings Const. L.Q. 807
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol40/iss4/3