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O'Neill on Roberts and NFIB v. Sebelius


Timothy P. O'Neill has an interesting piece on the "Thayerism" school of heavy deference to legislative judgments that may have motivated Justice Roberts's opinion in NFIB v. Sebelius. One can disagree with it, but it is a fundamentally conservative form of jurisprudence; as I argued in June, you can be unhappy that Roberts takes judicial restraint to such levels, but you can't accuse him of being a Souter.

While O'Neill focuses on Justice Harlan, Justice Roberts's own jurisprudence already gave hints of this approach: Free Enterprise Fund, NAMUDNO, and Wisconsin Right to Life, in hindsight, show the same tendency to err on the side of deference to the legislature. (See also Adler @ Volokh.)

(Apologies to Professor O'Neill for originally misspelling his name.)


Ted, Thanks for noting the article....but I'd appreciate if you'd change references to me from "O'Brien" to 'O'Neill"!

While it can be argued with some persuasion that Justice Roberts was engaging in Thayerism in the decision to call the mandate "penalty" a "tax" in ObamaCare, I think something else is in play.

There has always been a line of thought that government mandates, for whatever reason are ultimately legitimized by the ability of the government to tax. I argued in law school and afterward that a government mandating the buying of an insurance in order to carry out some activity is really a tax. So that requirements to buy worker's comp insurance, or dram shop insurance or any other of a number of mandated insurances is really a tax, if the policing power of the state is used to enforce it. At the time, I was assured by professors that I didn't really understand tax law. But in the end, even if the city government forces you to but smoke detectors for a public building, or face a fine, that is a tax. This is all Roberts did. Conclude that the Congress had the right to impose a tax.

Justice Roberts probably didn't want to get the reputation as "the one who brought down OabamaCare." But it was within reason to call it a tax.

This is the heart of what we would like to see in judges of all stripes. There is nothing worse than a judge determining their judgment to be superior to that of the voters. Roberts felt it best to leave it in the hands of the legislature and ultimately the voters. And the voters, faced with a clear chance to take down ObamaCare voted to preserve it last November.

A couple of other parts of the decision are relevant. The Medicaid mandate to coerce states to expand coverage was a surreptitious back door to a single payer system. However, this got knocked down 7-2. What about the legislative intent there? Surely, if a mandate is a tax, then the government can coerce states to expand Medicaid. Not much Thayerism in action there. It also put a bullet in the head of ObamaCare.

Same thing with the tax issue. It can never be raised to a level to appropriately pay for ObamaCare. John Roberts appears to be more of a "poison pill" merchant than a Thayer.

ObamaCare runs the risk of being gutted from the inside out by future courts. Any law that starts out with 2400 pages designed to produce 100,000 pages of new regulations will generate hundreds or thousands of lawsuits as people experience damages. A small number of cases could bring it down.

It is somewhat similar to McCain Feingold which was found constitutional in Mconnell v. FEC, but was dismantled by FEC v. Wisconsin Right to Life, Davis v. FEC and Citizens United v. FEC.

I would imagine Justice Roberts is aware of this possibility.

By the way, where are all those whiners who were complaining about Citizens United before the election? We have proof spending a fortune on an election didn't have much effect on the outcome.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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