The Texas Review of Law and Politics has just published as a law review article an expanded, annotated version of the speech I’ve been giving all over the country regarding the Supreme Court’s ruling in NFIB v. Sebelius. The title, which I hope will hold up with the passage of time, is “Like Eastwood Talking to a Chair: The Good, the Bad, and the Ugly of the Obamacare Ruling.” Here’s the abstract:
The constitutional challenge to Obamacare was a case that comes along once every generation, if not less often. Not because it could affect a presidential election or was otherwise politically significant, but because it reconsidered so many aspects of our constitutional first principles: the fundamental relationships between citizens and the government and between the states and the federal government; the role of the judiciary in saying what the law is and checking the political branches; and the scope of and limits to all three branches’ powers. This case was not about the state of health care in America or how to fix this troubled area of public policy. It was instead about how to read our nation’s basic law and whether Congress was constitutionally authorized to use the tools it used in this particular instance.
Anyone reading this article will already know at least the basic outline of the Supreme Court’s ruling. As I wrote on the leading Supreme Court blog in the wake of the decision, those who challenged the law won everything but the case. That is, the Supreme Court adopted all of our legal theories regarding the scope of federal regulatory authority and yet Obamacare stands. This article explains and elaborates on those basic points, the good (Commerce Clause, Necessary & Proper Clause, Spending Clause), the bad (the taxing power), and the ugly (John Roberts’s reasoning and motivations).
In sum, the Constitution’s structural provisions — federalism, separation and enumeration of powers, checks and balances — aren’t just a dry exercise in political theory, but a means to protect individual liberty from the concentrated power of popular majorities. Justice Kennedy said it best in summarizing the joint dissent from the bench: “Structure means liberty.” If Congress can avoid the Constitution’s structural limits by “taxing” inactivity, its power is no more limited and liberty no better protected than if it were allowed to regulate at will under the Commerce Clause. The ultimate lesson to draw from this two‐year legal seminar, then, is that the proper role of judges is to apply the Constitution regardless of whether it leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.
As should be clear from this article, I’m still not over the ruling – by recognizing that Obamacare was unconstitutional but shying away from striking it down, John Roberts fundamentally shook my faith in our system of justice – and probably never will be.