I have just posted to SSRN the paper, Who Won the Obamacare Case (and Why Did so Many Law Professors Miss the Boat)?, on which my forthcoming Dunwody Lecture at the University of Florida on March 22nd will be based. It will appear in the Florida Law Review. Here is the abstract.
ABSTRACT: 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, I suggest 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.
For some, the last point I make may be of greatest interest because I think it helps explain why the lawsuit had legs to a degree that most law professors did not expect, and I do not attribute this solely to the ideological imbalance of the legal academy. After all, some on the right, like Orin, were similarly surprised.
You can download it here.