an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Roberts Opinion on the Minimum Coverage Provision
Columbia Law School Professors Nate Persily, Gillian Metzger, and Trevor Morrison are editing a volume on NFIB v. Sebelius that will appear this spring. In my contribution to the volume, I assess Chief Justice Roberts’s responses to the Affordable Care Act’s minimum coverage provision. I approach the Roberts opinion both from the internal perspective of the faithful legal practitioner and from the external perspective of the system analyst.
From the internal perspective, I ask whether the various parts of Roberts’s opinion are legally justifiable. I focus on what Roberts decided, not why he decided it that way.
I conclude that law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to apply when federal laws are challenged on federalism grounds.
By contrast, I argue that Roberts was unpersuasive in concluding that the minimum coverage provision was beyond the scope of the Commerce and Necessary and Proper Clauses. Roberts failed to apply the modern doctrine of “constitutional avoidance,” thereby needlessly deciding these questions. What is more, he decided them wrongly. Fortunately, the doctrinal consequences of this portion of his opinion will likely (although by no means certainly) prove insignificant.
From the external perspective, I ask what Roberts may have accomplished in responding to NFIB as he did. By prohibiting Congress from requiring Americans to purchase products against their will, Roberts partially expressed new popular and professional constitutional arguments—arguments developed by those who had mobilized against the prevailing view among legal experts that the minimum coverage provision is constitutional. By upholding the minimum coverage provision under the Taxing Clause, he validated the values of the ACA’s supporters and respected the post-New Deal convention that the Court should uphold momentous social welfare legislation. By partially validating the sincerely held moral beliefs of both sides, Roberts may have succeeded in sustaining some measure of social solidarity amidst intense disagreement over health care reform, thereby enhancing the public legitimacy of constitutional law.
Roberts may or may not have intended to practice judicial statesmanship, and his statesmanship may not be enough to justify his contradictions of sound legal reasoning. But statesmanship probably provides the most persuasive way to try to justify his analyses of the Commerce and Necessary and Proper Clauses. Such a defense, however, would require the application of criteria that are difficult to justify as legal from the internal point of view.
by Neil Siegel [link]