Today is the first anniversary of NFIB v. Sebelius, the Supreme Court’s controversial decision in the Obamacare case. It is still too soon for us to fully appreciate the long-term impact of the ruling. We are also still far from reaching any kind of consensus about the correctness of the Court’s decision.
For the moment, however, I’m sticking with the assessment I made in this SCOTUSblog post written on the day the decision was announced:
Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued that the mandate is unconstitutional. One might even call it taxing. The plaintiffs came about as close as one can to winning a major constitutional case without actually winning it. It is the legal equivalent of losing the World Series after leading in the bottom of the ninth inning in the seventh game. It is not a happy day for supporters of limited government.
Yet the Court also offers us a measure of hope and vindication. A majority of the justices rejected claims that the mandate is authorized by the Commerce Clause and Necessary and Proper Clause. That has little immediate impact, but bodes well for the future….
As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues. Both Chief Justice Roberts’ opinion and the powerful four-justice dissent reaffirm the need to enforce limits on congressional authority. And both accept all or most of the main constitutional arguments against the mandate. The latter will constrain future mandates imposed under the Commerce and Necessary and Proper Clauses. No one can any longer say that the case against the mandate was a sure loser that could only be endorsed by fringe extremists or people ignorant of constitutional law.
Defenders of extremely broad federal power won an important battle today. But the war will continue.
In this recent Harvard Health Policy Review article, I presented a more detailed statement of my take on the decision, which also covers the Medicaid/Spending Clause aspect of the case. It’s only a few pages long and should be accessible to nonexperts.
At the risk of further shameless self-promotion (not that we bloggers ever feel much shame about that!), here are two potentially interesting books about the decision:
For true constitutional law mavens, I recommend the recently published The Health Care Case: The Supreme Court’s Decision and Its Implications, edited by Nathaniel Persily, Gillian Metzger, and Trevor Morrison. It includes contributions by numerous legal scholars and commentators on both sides of the issue, including the VC’s own Randy Barnett and Jonathan Adler, and myself. An earlier draft of my contribution to the book, focusing on the Necessary and Proper Clause issues in the case, is available here. But whether or not you have any interest in my chapter, people with a strong interest in the case may want to take a look at the book because it covers so many different aspects of the case, and includes essays by numerous big-name legal scholars and commentators, including Jack Balkin, Andrew Koppelman, Richard Epstein, Neil Siegel, Linda Greenhouse, and others.
Finally, coming to a bookstore/website near you this fall is A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, a collection of the VC’s most important posts on all aspects of the Obamacare litigation, plus some of our other writings on the case, including several new essays reflecting on the historical significance of the decision and the role of the VC and the blogosphere generally in influencing the legal arguments and public debate. There is also a foreword by Paul Clement, the famous lawyer who represented the 26 states and other plaintiffs challenging the law before the Supreme Court, and an introduction by our editor, Trevor Burrus of the Cato Institute. Perhaps most important for loyal Volokh Conspiracy readers, this is the first book to include contributions by six different VC bloggers: Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, David Kopel, and myself. The Amazon site for the book (linked above) is still under construction, and has a slightly outdated version of the subtitle and cover. But I think today is an appropriate time to let interested readers know about the book, which is now available for preordering.
UPDATE: When I first put up this post, I forgot to actually include a link to the Amazon site for A Conspiracy Against Obamacare. I have now corrected that mistake. Sorry for any confusion.