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Northwestern University Law Review Online


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 under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct 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 at times, but those instances differ decisively from NFIB, and in any event the Chief Justice’s attempt at institutional stewardship appears largely unsuccessful. Second, the opinion is lawless in a descriptive sense. Every part of the opinion fails to state or to defend adequately 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 neglects to justify 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 under the Spending Clause, suffers from crucial ambiguities about the nature of the constitutional violation and the scope of the remedy. Professor Magarian concludes that the lawlessness of Chief Justice Roberts’ opinion in NFIB, far from exemplifying courage and pragmatism, provides a cautionary model of how the Supreme Court should not decide cases.


Constitutional Law, Supreme Court, Commerce Power, Taxing Power, Spending Power, Affordable Care Act, Chief Justice Roberts, Health Care, Medicaid, Federalism

Publication Citation

Gregory P. Magarian, Chief Justice Robert’s Individual Mandate: The Lawless Medicine of NFIB v. Sebelius, 108 Nw. U. L. Rev. Online 15 (2013)