This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings:
The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate seemed within reach. But despair is unwarranted. The negative consequences of the ruling for constitutional law are actually quite limited, and there is much in it upon which to build.
UPDATE: Just a quick update to clarify some points that I had hoped would be self-evident, but are not. First, to say there is a “silver lining” is to acknowledge that there is a cloud. In this case there is a significant one: the mandate was not struck down. The point of the essay, however, is that not all court losses are doctrinally equivalent. It is possible to lose a case like this in a way that opens the floodgates, and it is possible to lose a case like this on very narrow grounds that don’t upset settled doctrine all that much. In my view, a case like Gonzales v. Raich was the former. I never thought Raich had much chance to prevail (sorry Randy), but I had hoped for a very narrow, “marijuana-is-like-wheat” decision. What we got instead, in my view, were majority and concurring opinions with very expansive language.
NFIB, on other hand, is more of the latter. The fear was that if the mandate was upheld, the Court would blow through yet another potential limitation on use of the Commerce Clause or Necessary & Proper Clause. It did neither. For those who are disappointed the Court did not overturn Wickard, that was never on the table. The most anyone could have hoped for was for the Court to distinguish the mandate from prior precedents, as a majority of the Court ultimately did.
The Court upheld the mandate under the tax, and that’s a big cloud, but on narrow grounds — the mandate’s penalty functions as a tax, is non-punitive, etc. — and in a way that doesn’t allow Congress to do anything it could not already do. The income tax is littered with provisions that result in people within given income ranges paying more taxes to the feds if they fail to purchase certain goods and services. I would prefer it had the Court not made it easier for Congress to do this sort of thing, but the nature of the power is not new. So the loss on this point is rather limited. It’s a cloud, not a maelstrom.
Finally, the spending clause portion of the decision could turn out to be quite a big deal. For the Court to invalidate a condition imposed on state receipt of federal funds for the first time since the New Deal is quite significant — more significant than the tax power holding. In the end, my point is not that mandate opponents or federalism proponents should be be happy with this decision, but that, from a doctrinal standpoint, not much