[Al Norris]

What This Thread Is Not

This thread is not about President Obama's Health Care Mandates. It is not about Health Care. It is not about Medicaid. It is not about Health Insurance. It is not about the state of health care in the US vs the world.

Those topics are not now and never were valid topics for discussion.

What This Thread Is

This thread is about the decision in NFIB v. Sebelius as it relates to the Enumerated Powers of Congress and how this decision may affect our Civil Rights, going forward.


Should you decide to enter into this discussion, think well and hard before you hit the "Submit Reply" button. Stray from the topic, and your post will be deleted without warning. Depending upon how far off topic your post is, you may very well lose your privileges at TFL.

We have become very lax, of late, in enforcing the rules of discussion in the Law & Civil Rights Forum at TFL. I expect everyone to have read the Read Me First! sticky. Those rules will be enforced.

To begin....




The decision itself is convoluted. The dissenting opinion was written by CJ Roberts. It was to have been the majority opinion. The Concurring opinion was written by Ginsberg and was originally the dissenting opinion.

CJ Roberts, for whatever reasons, wrote a separate opinion, in which he held 4 major rulings on the Act. His opinion is the controlling opinion and is the opinion, rightly or wrongly, that will move forward.

This can be seen in how the decision has been joined by the other Justices of the Court. From the majority opinion:

CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which JUSTICE BREYER and JUSTICE KAGAN join, and an opinion with respect to Parts III–A, III–B, and III–D.

From the concurring opinion:

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part, and dissenting in part.

From the dissenting opinion:

JUSTICE SCALIA, JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE ALITO, dissenting.

It is of note, that the dissent was not signed by the minority Justices. That is because apart from a few minor changes, none of them authored the opinion. Chief Justice Roberts wrote this (it is his style of writing, and no authority has said different) as the initial majority opinion, before he changed his mind and wrote a separate majority opinion.

Let's look at what this decision did:

1. The decision that the PPACA Mandate was unconstitutional as a function of the Commerce Clause: 5-4 (Roberts, Scalia, Alito, Kennedy and Thomas).
2. The decision that the Necessary and Proper Clause as a vehicle to the PPACA was unconstitutional (it may have been necessary, but it was not proper): 5-4 (Roberts, Scalia, Alito, Kennedy and Thomas).
3. The decision that the Medicaid provisions were an unconstitutional coercion by Congress against the sovereignty of the States (spending power): 7-2 (Roberts, Scalia, Alito, Kennedy, Thomas, Breyer and Souter).
4. The decision that the PPACA survives as a constitutional power of the Congresses ability to Tax (General Welfare): 5-4 (Roberts, Souter, Kagan, Breyer and Ginsberg).

Each and every point above affects now or will affect our civil rights, including our gun rights. The legal ramifications alone are immense for or against Federalism.

The above have been my thoughts of this decision from my second reading of the decision. This has been confirmed, by the academic discussion that the SCOTUS Blog hosted in the days following the decision: Sebelius Post-decision Symposium, comprising short summaries by liberal, conservative and libertarian Professors of Law. Many (most?) of them, the leading scholars of todays constitutional interpretation. It is a must read on what the NFIB v. Sebelius decision did and/or did not do.




Notes on terms used, thus far:

CJ = Chief Justice
NFIB = National Federation of Independent Business - 1 of the 3 combined lawsuits that the Court granted cert.
PPACA = Patient Protection and Affordable Care Act - The law that was at issue.
SCOTUS = Supreme Court Of The United States.