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Unpublished Paper
The Lawlessness of Sebelius
ExpressO (2012)
  • Gregory P. Magarian, Washington University in St Louis

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the opinion is lawless in a normative sense. The Chief Justice’s analyses of the Commerce Clause and the Necessary and Proper Clause make no contribution to his ultimate decision to uphold the mandate. Including those analyses in his opinion therefore flouts essential norms of constitutional judicial review. In addition, the opinion is normatively lawless to the extent it willfully abdicates legal analysis in order to defuse politically grounded complaints about judicial activism. The Court has legitimately made that sort of tradeoff on a few past occasions, but those instances differ decisively from Sebelius, and in any event the Chief Justice’s attempt at institutional stewardship appears ill-fated. Second, the opinion is lawless in a descriptive sense. Every part of the opinion fails to state or adequately to defend some important legal conclusion. The Chief Justice’s discussions of the Commerce Clause and the Necessary and Proper Clause literally contain no law, because they state no conclusion necessary to the Court’s decision. His Taxing Clause discussion fails to defend key premises about both the application of the Anti-Injunction Act and the scope of the taxing power. The final part of the Chief Justice’s opinion, which dramatically weakens the Act’s expansion of Medicaid, implicates the Spending Clause. That analysis leaves open crucial ambiguities about the nature of the constitutional violation and the necessary extent of the remedy, rendering the legal conclusion incoherent. Professor Magarian concludes that the profound lawlessness of Chief Justice Roberts’ opinion in Sebelius provides a cautionary model of how the Supreme Court should not make decisions.

  • federalism,
  • Obamacare,
  • Affordable Care Act,
  • Chief Justice Roberts,
  • Supreme Court,
  • rule of law,
  • Commerce Clause,
  • taxing and spending,
  • judicial review
Publication Date
August 9, 2012
Citation Information
Gregory P. Magarian. "The Lawlessness of Sebelius" ExpressO (2012)
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