How NFIB V. Sebelius affects the constitutional gestalt.

AuthorSolum, Lawrence B.
PositionIntroduction: Direct and Indirect Legal Effects through III. Direct Legal Effects: The Mandate and Stare Decisis B. Vertical Stare Decisis 2. Vertical Stare Decisis Effects of All the Opinions Under the Narrowest Grounds Rule, p. 1-28
  1. INTRODUCTION: DIRECT AND INDIRECT LEGAL EFFECTS

    This Essay examines the effects of the Supreme Court's decision in National Federation of Independent Business v. Sebelius, (1) in which the Court addressed the constitutionality of the Affordable Care Act. (2) More precisely, what effects will NFIB have on the law--especially constitutional law? We can divide these effects into two general categories, direct and indirect. "Direct legal effects" are those created by and through legal norms. They include the operation of legal orders (the mandate in an appellate opinion) and legal rules (stare decisis and the doctrine of law of the case). "Indirect legal effects" are mediated by causal processes that are not themselves instantiations of legal rules. For example, if a legal decision affects politics, and then the political change affects the law, that change would constitute an indirect legal effect.

    The Supreme Court's decision in NFIB v. Sebelius has already had important direct legal consequences--The Patient Protection and Affordable Care Act (ACA) has gone into effect, but with a significant alteration in the incentive provided to the states to expand Medicaid coverage and eligibility. (3) Via the doctrine of vertical stare decisis, NFIB could have direct effects in future lower-court cases involving the Anti-Injunction Act (4) and the spending power. (5) On the Commerce Clause and Necessary and Proper Clause issues, the direct legal effects are complex and likely to be disputed. The strongest argument for a Commerce Clause holding postulates that NFIB has stare decisis effects in cases in which another individual mandate (relevantly similar to the mandate in the ACA) is enforced by a criminal penalty--or other penalty that could not be fairly characterized as a tax via a saving construction.

    Whatever direct legal effects the Court's decision ultimately produces, the thesis of this Essay is that the most important and far-reaching legal effects of NFIB are likely to be indirect. NFIB destabilizes what we can call the "constitutional gestalt" (6) regarding the meaning and implications of what is referred to as the "New Deal Settlement." (7) The idea of a constitutional gestalt will be explored in depth below, (8) but the basic idea is that the gestalt is an interpretive framework that organizes our understanding of cases, theories, and narratives; we can think of the constitutional gestalt as a very general and abstract map of the constitutional landscape. Before NFIB, the consensus understanding was that the New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause, (9) although the regime might also contain narrow and limited carve-outs protective of the core of state sovereignty. (10) After NFIB, the constitutional gestalt is unsettled.

    In NFIB, five Justices of the Supreme Court endorsed a view of the Commerce Clause (11) that is inconsistent with the prevailing understanding of the constitutional gestalt associated with the New Deal Settlement. (12) Endorsement of this view by a majority of the Court opens a fissure in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power. Instead, the alternative understanding is that the New Deal and Warren Court cases establish only the constitutionality of particular federal programs, specific zones of federal power, and particular modes of federal regulation. The most important indirect effect of NFIB is that it enables constitutional contestation (13) over the content of the gestalt and the meaning of the New Deal Settlement.

    The remainder of this Essay is organized as follows. Part II analyzes the structure of the opinions in NFIB, and Part III examines the direct legal effects that these opinions will produce. This discussion may seem dry and technical, even to Supreme Court enthusiasts. We will examine what is called the "mandate"--the direct legal command contained in the opinion of the Court and its implications for the vertical law-of-the-case effects of NFIB. We then will turn to the doctrine of vertical stare decisis, which will require us to examine the convoluted structure of the various opinions in the case. That will lead to the doctrine of horizontal stare decisis--the precedential effect of NFIB on future decisions of the Supreme Court itself.

    Readers who are familiar with the complex structure of the opinions in NFIB may wish to proceed directly to Part III on page 16, discussing direct legal effects, including the vertical and horizontal stare decisis effects of the decision. Other readers may wish to proceed directly to Part IV on page 37, which discusses the effect of the decision on the constitutional gestalt.

    The technical analysis in Part III leads to the conclusion that on the Commerce Clause issue, NFIB is unlikely to produce stare decisis effects that are clear and uncontested--one way or the other. That conclusion has an implication: NFIB opens up space for constitutional contestation. That space is then examined in Part IV, which is about the indirect legal effects of NFIB. We begin by examining the idea of a constitutional gestalt--a highly abstract feature of constitutional thought and discourse that unifies constitutional theories, narratives, and doctrines. We then turn to the effects of NFIB on the stability of the constitutional gestalt associated with the New Deal Settlement. This leads to the core idea of the essay--that NFIB destabilizes the constitutional gestalt, potentially (but not necessarily) enabling a constitutional gestalt shift. Part V integrates the discussion of direct and indirect effects and draws some speculative conclusions about the future of constitutional discourse and politics.

  2. THE CASE AND THE OPINIONS

    Before we examine the effects of the Supreme Court's decision of NFIB v. Sebelius, it is necessary to unpack the issues and opinions. The first step is the usual, but hopefully brief, recitation of the facts and procedural history. (14)

    1. The Facts and Procedural History

      The ACA was enacted by Congress in 2010. It is a complex statute--hundreds of provisions and some nine hundred pages in length. Two provisions of the ACA were challenged. The first was the individual mandate, which required certain individuals to purchase qualifying health insurance. (15) The second challenged provision was the Medicaid expansion, a portion of which effectively required states to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level by withdrawing all federal Medicaid funds from noncomplying states. (16)

      The day the ACA was signed into law, thirteen states filed a complaint in the United States District Court for the Northern District of Florida. The original plaintiffs were later joined by an additional thirteen states, the National Federation of Independent Business, and several individuals. (17) The District Court held that Congress lacked legislative power to enact the individual mandate, and that the mandate could not be severed--resulting in an order that struck down the Act in its entirety. (18) The United States Court of Appeals for the Eleventh Circuit affirmed the determination that Congress lacked legislative power to enact the individual mandate, but reversed the determination that the mandate was not severable. (19) The Eleventh Circuit also rejected the challenge to the Medicaid expansion provisions. (20) Two other circuits rejected challenges to the individual mandate. (21) One circuit held that the Anti-Injunction Act created a jurisdictional bar to the challenge. (22) The United States Supreme Court granted certiorari in the Eleventh Circuit cases. (23)

      The Supreme Court held that the Anti-Injunction Act was not a barrier to the challenge to the mandate and upheld the related penalty provision of the ACA on the basis of the tax power. (24) In addition, a portion of Justice Roberts's opinion that was joined by Justices Breyer and Kagan, (25) in conjunction with the joint dissent by Justices Kennedy, Scalia, Thomas, and Alito, (26) effectively establishes the unconstitutionality of the ACA's Medicaid expansion provisions to the extent that these provisions threaten states with the loss of existing Medicaid funding.

      Formally, there are four opinions in NFIB v. Sebelius, but different constellations of Justices join different portions of these four opinions. Functionally, we can identify seven distinct opinions--each joined by a different set of Justices. These seven functional opinions address five distinct issues. The clearest way to reduce the opinions' complexity is to outline their structure and relationship to the issues.

    2. Functionally, Seven Opinions on Five Issues

      The following overview will identify the seven opinions and the five issues. To understand the opinions, it is necessary first to identify the five issues addressed by the Court, presented as Table 1: Issues in NFIB v. Sebelius.

      Step two is to identify the distinct opinions. There are four formal opinions with six authors; they function, however, as seven distinct opinions. Justice Roberts authored an opinion, portions of which were the opinion of the Court. Justice Ginsburg authored an opinion, different parts of which were joined by different Justices. There was a joint dissenting opinion authored by Kennedy, Scalia, Thomas, and Alito. Finally, Justice Thomas had a separate dissenting opinion. (27)

      This complex structure of the opinions can be unpacked as a table:

    3. The Seven Functionally Distinct Opinions

      The next step is to summarize each of the seven functionally distinct opinions with respect to the five issues.

      1. The Opinion of the Court

        The opinion of the Court is contained in Parts I, II, and III-C of the opinion...

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