University of Pennsylvania Law School
A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.
Heed Not the Umpire (Justice Ginsburg Called NFIB),
University of Pennsylvania Journal of Constitutional Law
Available at: https://scholarship.law.bu.edu/faculty_scholarship/886