Randy E. Barnett, No Small Feat: Who Won the Health Care Case (and Why Did So Many Law Professors Miss the Boat)

65 Fla. L. Rev. 1331 |

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Prof. Barnett

In this Essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, I describe five aspects of the United States Supreme Court’sdecision in National Federation of Independent Business v. Sebelius that are sometimes overlooked or misunderstood: (1) the Court held that imposing economic mandates on the people was unconstitutional underthe Commerce and Necessary and Proper Clauses; (2) Chief Justice John Roberts’s reasoning was the holding in the case, whether viewed from a formalist or a realist perspective; (3) the Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) the newfound power to tax inactivity is far less dangerous than the commerce power advocated for by the Government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of law professors’ published opinions about the case, I suggest that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism and carried over to a majority of the Roberts Court.

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