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Law & the Courts

Revisiting NFIB v. Sebelius

I take Kevin Drum’s point in this post to be that the view that the Supreme Court is in general too inclined to overturn federal laws is hard to square with the view that it should have struck down Obamacare because of the individual mandate. A series of precedents upheld congressional authority to impose the mandate, he claims, yet conservatives invented a “hairsplitting” distinction between regulating commerce and forcing someone to enter commerce in order to justify striking it down.

The key assertion here is that the distinction is hairsplitting. If you don’t agree with that, as I don’t, you’ll view the case differently. You’ll think that Congress had not previously tried to impose anything like the individual mandate, that the Court had therefore never considered whether it could, that the precedents that blessed an expansive congressional power to regulate interstate commerce were thus off-point, and that new arguments had to be thought through to meet the new circumstance. Those arguments, in my view, justified striking down the individual mandate (as four and a half justices concluded in NFIB v. Sebelius).

But I’ll give Drum this: I do think that the Court overreached, with conservatives’ approval, in striking down part of Obamacare. Seven justices agreed that the federal government could use the threat of withdrawing some federal funds to get states to expand Medicaid, but could not withdraw as much funding as the Obamacare law threatened. That the Constitution lays out any such judicially-enforceable line has always seemed implausible to me.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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