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Fordham University School of Law




If someone had told me on June 27, 2012, that five Justices of the U.S. Supreme Court were about to hold in National Federation of Independent Business v. Sebelius 1 (NFIB) that the individual mandate provision in the Patient Protection and Affordable Care Act 2 (PPACA) was not constitutionally authorized either by the Commerce Clause or the Necessary and Proper Clause, 3 I would have popped a cork. I don't even drink, but I would have popped the cork on principle just to hear the sound (and also to irritate my colleagues, most of whom revere the PPACA the way that cargo cultists revere airstrips 4 ). I would have thought it obvious that such a holding would entail invalidation of the mandate; and while that would not necessarily have rid the world of the statute in its entirety, absent five solid votes for nonseverability, it would have been--as the old joke says of 10,000 lawyers at the bottom of the Atlantic--a good start. Of course, I would have been wrong on pretty much every possible level (except in believing that invalidation of the mandate would have been a *1700 good start, but that is a topic for another paper). Halfway through Chief Justice Roberts's opinion, the mandate was essentially pronounced dead. But like young Victor reviving the deceased Frankenweenie, Chief Justice Roberts resurrected the mandate from the grave by calling it an indirect tax. The operation was successful, but the patient unfortunately lived.

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