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Thursday, June 28, 2012

The ACA and the Marbury Meme: Two Reactions

In light of the e-forrests being felled over today's Supreme Court decision re: the Affordable Care Act, I'm loathe to say much of anything, both because (1) life goes on; and (2) we're reaching that point in the proceedings where everything has been said, it's just that not everyone has said it.

Nevertheless, I wanted to interject two brief rejoinders to one of the memes lurking in the (ever-proliferating) analyses of today's decision--i.e., that Chief Justice Roberts' majority opinion was a political masterstroke (a la Marbury v. Madison) insofar as it allowed him to save the Court while "gutting" the Commerce Clause; or, on different terms, that "supporters of limited government" lost the battle, but may have won / be winning the war. Examples of the former include Larry Solum @ LTB and Tom Scocca @ Slate; examples of the latter include Ilya Somin @ SCOTUSblog and (I'm sure) lots of others I haven't read. Whether this narrative is coming from folks trying to put a positive spin on what to them is a disappointing result or otherwise, I suspect it's going to be one of the common themes in the more studied post-morterms, and at least initially, I'm not convinced:

1. NFIB Isn't Another Marbury. Leaving aside the fact that the case name just doesn't roll off the tongue the same way, I have a hard time seeing much in the Chief's opinion that resembles Marbury at anything other than a hopelessly abstract and superficial level. For starters, Chief Justice Marshall's masterstroke in Marbury was expanding the Court's literal power in a manner that didn't require him to rule against President Jefferson--to the contrary, striking down section 13 of the Judiciary Act of 1789 deprived him of his authority to rule for the side with which his politics were sympathetic. The Federalists didn't win in the long-term; the Court did. Nothing in NFIB v. Sebelius, in contrast, expands the Court's jurisdiction beyond where it stood yesterday, or its unquestioned power to invalidate state and federal laws that are inconsistent with the Constitution (see, e.g., the joint dissent).  Although the Chief's opinion surely has institutional value (insofar as, in the eyes of many, it maintained the Court's legitimacy), I dare say that nothing is true about the Court as an institution tomorrow that wasn't true yesterday. And whether NFIB ends up as more of a boon to Democrats or Republicans, it's hard to see how the Court wins in the long-term from today's decision in any way other than because it didn't lose--avoiding the enmity and bitterness of a jaded and disappointed progressive community. 

Some might respond that the analogy to Marbury isn't about institutional power, but rather doctrinal misdirection: Hiding important substantive law behind a decision that seems to come out the other way, so that the Court achieves substantive results in the long-term that institutional concerns prevented it from claiming more immediately. Thus, Scocca, suggests, "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory." Even if this were a fair reading of Marbury (does anyone besides Federal Courts nerds actually care in the long term about Congress's power over the Supreme Court's original jurisdiction), it assumes facts not in evidence about NFIB, specifically that the Chief's Commerce Clause and Spending Clause analyses will have significant weight going forward.  That brings me to...

2. It's Spending, Not Commerce, That's Going To Matter. The assumption behind this entire narrative is that Chief Justice Roberts' majority opinion materially advances the ball with regard to constitutional limits on the Commerce and Clause, and is therefore a strategic, if not tactical, victory for those opposed to expansive views of the federal government's regulatory powers. Although I think there's a lot to this claim with respect to the Spending Clause, I'm far less convinced re: commerce. After all, (1) there's a non-frivolous argument that the Commerce Clause analysis is dicta (I just don't buy the necessary-to-the-result analysis); and (2) even if it is a holding, I can't think of a single other statute (or widely discussed proposal) that is vulnerable to the narrowly circumscribed Commerce Clause problems the Chief identifies in his opinion. Corey Yung is unquestionably right that there are lots of quiet penalties for inactivity in federal law. But few that look just like this--that was the whole point, remember? So might today's decision affect how Congress legislates going forward? Sure. The next time Congress wants to take an unprecedented step to require Americans to participate in a market in which there is a plausible claim they would otherwise stay out of, it'll matter whether the Chief's analysis was dicta or a holding. I, for one, will not be holding my breath in anticipation.

As for the Spending Clause, I really do think that, given what the Court (including Justices Breyer and Kagan) did here, today's result is not as sweeping a win for the Obama Administration as many had hoped for / reported. Indeed, I basically agree entirely with what Sam Bagenstos had to say re: how this might matter going forward. Without question, the substantive constraints on Spending Clause statutes will affect future legislation and litigation (albeit probably very little, ironically, with regard to the Medicaid expansion itself, thanks to both (1) the five-Justice Booker-remedy move; and (2) the terms of the ACA deal, which will likely prove too good to pass up even as a pure bribe). And even if the effects are overstated, it's not every day that the Supreme Court recognizes a limit on a particular source of Congress's powers for the first time in 75 years. But, and again unlike Marbury, there was no misdirection here. This was just a different holding on an analytically different issue that just happened to arise in the same case. Had the issues been resolved in separate opinions, or wholly separate cases, we wouldn't even think of the Marbury analogy. And as big a deal as the Spending Clause holding is, as mixed a bag as it makes what happened today, and as important as it may be in the future, none of those does a Marbury make. Sometimes a pig is just a pig.

Posted by Steve Vladeck on June 28, 2012 at 07:29 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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My response was not suggesting a certain reading of Marbury. I wanted to clarify that you unfortunately incorrectly framed my position. Your first post suggested that my position only focused on legitimacy of the court while overlooking that Marbury was also about the Court gaining power (as if I or anyone else who passed Con Law was not aware of that). In response, I provided quoted language of my initial post where I raised the power issue as well.
In your last post you summarized your understanding of how "people view[] the Marbury-NFIB connection. . . ." This statement again suggests (1) that I did not previously make take the same position and (2) that I am not aware of that view. Both suggestions are, unfortunately, incorrect ("So while superficially proving a ruling that seems to rule in favor of one side of the political ideology, the lasting effect may be much more supportive of the opposite political ideology that the opinion seemed to rule against."). I'm not really sure how you missed that as well.
You then go on to again incorrectly frame my position as being only about "legitimacy" and continue to contrast my legitimacy point against a point I also provided. In essence, you were arguing against one of my positions with another position I provided. Although incorrectly framing my argument in such a limited manner makes it easier to counter, it really seems wasteful.
It is also notable, in both posts that intended to counter my position (no matter how incorrectly framed), you inadvertently support some of my points. In your first post you tried to dismiss the legitimacy point and then two paragraphs later write "the concern instead was that the Court would use this opportunity to make political waves, potentially damaging the Court's reputation." In this context legitimacy and making big political waves "damaging the Court's reputation" seem very similar, if not the same. The last paragraph in your last post again concedes the legitimacy point.
I would encourage you or anyone else to read my first post in its entirety and consider that all the points provided, viewed as a whole, support the proposition that NFIB was indeed very Marbury-like (and more than on a superficial or general level). As an aside, there is no need to restate the obvious that the facts were different and that Congress can regulate activity under its ability to tax, I can’t imagine anyone would have missed either of those points so I do not pretend to know why they were written.
To the remaining substance of your argument, the best I can tell is that you state that in all high profile cases the Court is concerned about its legitimacy (notably you provided no examples). I would respond, that may be true in some more high profile cases than than others—to say the least—and as you already wrote; NFIB and Marbury are about more than just legitimacy.
As far as the Commerce Clause and what is left of it in a practical sense, that issue is really tangential to the arguments made by Prof. Vladek and me. The argument is whether the two opinions were similar, and if so, to what extent. It is clear that you certainly desired to steer the discussion in that direction no matter how relevant to the actual discussion. Further it seems that you hold a strong opinion that the Commerce Clause is alive in well in its “plenary” authority, I note, however, that you didn’t really provide any analytical support for your statements other than saying but for the limiting precedent, the Commerce Clause power still exists. Similarly, other than that I’m six feet tall, 230 lbs., and gravity, I could dunk a basketball on a 10 foot goal without a trampoline, or more precisely, except for the fact that there is a hoop that the ball must go through all of my shots would count as baskets. Regardless, I disagree that the Commerce Clause is not that limited since Morrison and its progeny. NFIB limited it further, but not that much considering the limitations set by previous precedents. I did not intend nor do I have any interest lamenting about the Commerce Clause and federal power thereunder. The initial thread and initial response were focused on the whether NFIB and Marbury were similar in more than a “hopelessly abstract and superficial level”, not the Commerce Clause or its application (I spent a total of 12 words on the Commerce Clause, including “Commerce Clause”).
In contrast, both Prof. Vladek and I directed readers to NFIB’s effect on the Spending Clause (which you don’t mention in either of your responses), but I didn’t find any mention of that in either of your responses. That said, the Spending Clause, Commerce Clause and taxing authority are relevant to the NFIB but less relevant in comparing whether Marbury and NFIB. Forgive the obvious statement. It is intended to avoid another tangential discussion.
As for the taxing power, I question its lack of limitation. As I wrote above, “[i]t really does not take that big of a leap of faith to see the progression [from the newly limited Spending Clause power under the Medicaid analysis of NFIB] of the limitation of Congress's authority to tax to be limited to the point that such tax is determined to be a "penalty" (courts have already made analogous rulings in the bankruptcy context).” Again this is case-specific.
Your statement that NFIB has “NEVER been thought of as one that could dramatically alter the federal-state relations” is extremely curious considering the laws implicated (the ACA, Commerce Clause, Spending Clause and Medicaid). Not allowing the mandate on the regulation of Interstate Commerce (the counter to broccoli is of course the requirement to buy car insurance—although I recognize the car insurance requirement is implemented by the states but is it is evidence of the government forcing participants into commerce) and preventing the federal government from withdrawing all Medicaid support for states that elect not to participate in the ACA certainly seem to squarely affect federal-state relations (especially the Spending Clause/Medicaid issue). Again, this is a detail on the analysis of NFIB not in the comparison of NFIB and Marbury and therefore, not extremely relevant in and of itself to the thread.
I would like to point out a couple of other differing facts that are relevant: (1) prior to the Court’s ruling, the ACA was not widely supported and many of the polls I saw listed (I mentioned this in my initial post) showed a majority of the populous did not support it, so the Court did not need to fear an uproar from the populous nor do I think the Court’s ruling in the opposite would have carried the day as a platform to win the election (in fact the GOP is trying to do just the opposite post-NFIB) just as it was probably not terribly important to the populous whether Marbury was commissioned ,(2) it seems disingenuous or obtuse to say that the Commerce Clause was not relevant as that was the main argument the government made not only in support of its case before the Court but also as part of the legislative history, furthermore how much of the Court’s analysis regarding the Commerce Clause is dicta and how much of it is binding will, of course, depend on the court citing it and (3) one of the greatest fears that legal commentators held was how much precedent would have to be ignored or overturned to throw out the ACA (the tax authority would have been limited and years of severability analysis would be implicated).
The case-specific analysis of NFIB is relevant in this thread only to the point that they support the propositions providing the similarities between Marbury and NFIB. It’s really not necessary to debate those details up and to the point that you acknowledge there is some basis to support the proposition they support.
To summarize, both NFIB and Marbury implicate the Court’s legitimacy and power (and the limiting power of Congress). Both cases begin toward one conclusion but finish with ruling the opposite. Both cases appear to be a victory on behalf of one political ideology, but upon further analysis, provide language that could be much more lasting and beneficial to the opposing ideology. “[C]onventional understanding of Marbury has been challenged by many in the academy, so the case's place in history is subject to differing interpretations” – understanding NFIB seems to be taking a similar posture. Taken as a whole, along with some of the superficial similarities, it seems reasonable to believe NFIB was very Marbury-like (as CJ Roberts probably intended).

Posted by: Kris Nelson | Jul 2, 2012 1:10:33 PM

For an alternative understanding of NFIB, see Prof. Katyal's op-ed here:


He's not entirely wrong, but his fears don't really stem from NFIB itself, but rather an activist, ultra-conservative Court. In this sense, NFIB is a symptom, and not a cause, of the problem.

Posted by: Matt Ling | Jun 29, 2012 5:17:58 PM


I'm not trying to argue for a particular reading of Marbury. I'm just trying to suggest that the similarities between Marbury and NFIB, if read at such a general level (talking about legitimacy, or whatever), aren't really meaningful, at least to the extent that in all high-profile cases, the Court is concerned about institutional legitimacy.

Here's how I understand people viewing the Marbury-NFIB connection: that Roberts feinted in one direction, tricking his political opponents into thinking they won, and then grabbed the real prize, such as severely limiting the scope of the Commerce Clause or Spending Clause. Now maybe you can read it that way in the sense that the "real prize" was actually maintaining the legitimacy (i.e., political capital) of the Court. But if you read it that way, then NFIB isn't much different from any other high-profile case; the Court is always concerned with institutional legitimacy, especially so in high-profile cases. (And we should be clear that the facts of NFIB and Marbury are wildly different.)

As I suggested, even with Morrison, Lopez, and NFIB, Congressional power under the Commerce Clause is near plenary. And if you're generally concerned about federal power, remember that NFIB demonstrates that Congress *can* regulate inactivity, just not through the Commerce Clause. Indeed, all of the slippery slope arguments (e.g., broccoli) that conservatives have made against the Commerce power can apply to the Taxing Power (as many conservative commentators, such as Richard Epstein, have made this point.)

Also, I disagree that it's "pure speculation" to predict the precedential value of this case -- that's simply what lawyers do. If history has been any guide, the Commerce Clause is safe and sound. (Bets are off if Romney wins and appoints 2 more Scalia-like judges. But that's true regardless of NFIB -- even if we didn't have NFIB at all, we would still be concerned.)

My point about the Court wanting to make political waves was only that this case has NEVER been thought of as one that could dramatically alter the federal-state relations. Instead, commentators were concerned with the doctrinal ease with which the Court could strike the law down -- the Court would get huge returns (major political consequences) on a very small investment (small doctrinal change to Commerce Clause jurisprudence).

The facts of this case simply do not allow for any major alteration of the Commerce Clause, and any statements contrary to that would be dicta.

There is a connection, of course, between legitimacy and making political waves -- many commentators were concerned that the Court would harm it's reputation by striking down ACA. I think that's probably right -- had the Court struck down ACA, the President's response would have been to basically run against the Court: "look at what this activist, corporation-friendly Court has done now, this isn't how democracy is supposed to worK!" And to a large extent, I think those criticisms would be right. But Republicans are far more cautious about attacking the Court, since they still think the Court is "on their side".

Posted by: Matt Ling | Jun 29, 2012 5:10:23 PM


Maybe I was unclear from my post, but I thought I addressed the "power" of the Court issue in and the similarities in Marbury and NFIB. That was my intent. (e.g. ". I recognize NFIB didn't "establish" or literally broaden the Supreme Court's power. No question that it has as much power today as it did yesterday or the day before.
Could one not argue, however, that Marbury didn't necessarily create or establish the Court's power, but really established the Court's recognition and willingness to use it (Herb above seems to agree)? Stated differently, could one not read Marbury as establishing the legitimacy of the Supreme Court by showing it's willingness to use the power vested in it?")

Next, I don't see the strong distinction between my legitimacy position that you quickly dismiss and "the concern instead was that the Court would use this opportunity to make political waves, potentially damaging the Court's reputation". I think on this point we basically agree. Imagine the political waves had CJ Marshall issued the writ.

Finally, I guess my "what is left of the Commerce Clause" is relative when you consider what some believed its scope pre-Lopez, Morrison and NFIB.

It's pure speculation as to the lasting effect of this ruling, but it certainly seems reasonable to argue that it is Marbury-like characteristics both on its face and upon deeper analysis (especially if the conventional understanding of Marbury "has been challenged by many in the academy, so the case's place in history is subject to differing interpretations").

I for one, will wait and see, but will not be shocked when the Court limits the taxing power meets a similar limitation as the Spending Clause.

Posted by: Kris Nelson | Jun 29, 2012 3:04:44 PM


Marbury isn't just about maintaining institutional legitimacy -- it's about that, and gaining power at the same time. (As an aside, the conventional understanding of Marbury has been challenged by many in the academy, so the case's place in history is subject to differing interpretations.)

With regard to (1), you're trying to draw a parallel between Marbury and NFIB on the basis that in both cases, the Court was concerned with institutional legitimacy. That's undeniable, but that's similarly true with almost every high-profile case that the Court has taken.

As to (2), I think you're insinuating a false picture of the state of law when you write "what is left of the Commerce Clause", because what is left of the Commerce Clause is near plenary power, hemmed in only by NFIB, Lopez, and Morrison (and obviously external limitations such as the Bill of Rights and the political process itself). The only limit that NFIB places on the Commerce Clause is, as Prof. Vladeck points out, a prohibition on regulation of inactivity through the Commerce Clause.

Remember, a big reason why commentators became nervous about this case in the first place was that they realized the Court could smack down the President and the Democrats by striking down their major legislative achievement, while at the same time NOT dramatically redrawing the contours of the federal-state relationship. The Court was in the position to make a huge political impact, with only having a minimal impact on constitutional doctrine. There was never a concern, at least among informed commentators, that this case would dramatically affect Congress's power under the Commerce Clause simply because the facts of the case are so unique (it's always important to recall that the precedential value of a case depends on its facts) -- the concern instead was that the Court would use this opportunity to make political waves, potentially damaging the Court's reputation.

Not only do I think Prof. Vladeck is spot on with his analysis in this post, but I believe this is going to become, if it hasn't already, the conventional understanding of this case in the academy and among practitioners in the field.

Posted by: Matt Ling | Jun 29, 2012 1:53:49 PM

Prof. Vladek,

I respectfully submit on behalf of the less educated, non-Con Law professors that this opinion seems to be similar to Marbury in more than a "hopelessly abstract" and "superficial level" (of course maybe because I am not a learned scholar and "superficial" could be relative).

First I'd like to preface this with the disclosure that I support the ACA. Second, I must confess I have not read Marbury since 1L and thankfully that was in the second semester and long after we had already read Youngstown and McCulloch and their progenies (I am thankful for this--to have students read Marbury first is really just cruel--I think Prof. Fran Hill rocks, btw). Third I have not read the commentaries you cite in your blog (any repetition is purely coincidental). Finally, I practice corporate restructuring and real estate law, so I have not researched these issues since law school. Therefore, you can stop reading now if you like as you might find my position and analysis to be too elementary.

To the masses (of which I consider myself, especially compared to Yale Law educated, tenured Con Law experts), NFIB is similar to Marbury for the following reasons:

1. I recognize NFIB didn't "establish" or literally broaden the Supreme Court's power. No question that it has as much power today as it did yesterday or the day before.
Could one not argue, however, that Marbury didn't necessarily create or establish the Court's power, but really established the Court's recognition and willingness to use it (Herb above seems to agree)? Stated differently, could one not read Marbury as establishing the legitimacy of the Supreme Court by showing it's willingness to use the power vested in it?
Under this interpretation, if the Supreme Court struck down the ACA, or more specifically the mandate, the Supreme Court's legitimacy to many would be further questioned--especially in light of rulings like Citizens United and its recent reaffirmation (I recognize that (a) a majority of people expected the ACA mandate to fall and (b) a majority of Americans polled actually oppose the ACA--I imagine most of those don't understand it). You recognize this in your analysis above. It seems that the Roberts Court is blazing a path that purports to exercise judicial restraint and follow stare decisis while doing the opposite in many significant cases (e.g. Stern v. Marshall). I digress. Is it not a fair reading of Marbury to say that it implicated the legitimacy of the Court as well? Granted, you could say that it "established" the legitimacy while NFIB "maintained", but some case had to be the first.

2. The ruling seemed to be a ruling in favor of the sitting President's agenda, while providing significant language that could be used to limit or restrain the federal statutes for years to come. I 100% agree it's the Spending Clause limitation from yesterday's ruling that could turn to be the most lasting. That said, Roberts took this opportunity to (a) take another bite out of what is left of the Commerce Clause,(b) reaffirm the Court's willingness to look past the language and look to the function of incentive to encourage participation in health insurance and (c) establish limitations to the Spending Clause Power. It really does not take that big of a leap of faith to see the progression of the limitation of Congress's authority to tax to be limited to the point that such tax is determined to be a "penalty" (court's have already made analogous rulings in the bankruptcy context). So while superficially proving a ruling that seems to rule in favor of one side of the political ideologoy, the lasting effect may be much more supportive of the opposite political ideology that the opinion seemed to rule against.

Less significantly:

3. The unexpected result led by the Chief Justice who many expected to rule in the opposite direction. Something definitely smelled in Denmark to have CJ Roberts join the more liberal minority of justices for this particular opinion.

4. The opinion begins with what seems to be a ruling in one direction and then unexpectedly changes course to provide the opposite result, which led to the initial confusion yesterday. SCOTUS Opinions don't usually read that way and I do believe that was intentional by Roberts. I have a sense Roberts fashions himself the second coming of CJ Marshall and actually believes his own hype.

5. Finally, is it fair to discredit the effect of NFIB case because it has not had the opportunity to be used, especially when compared to Marbury? Whether the "necessary to the result" Commerce analysis is dicta or not there seems to be plenty language in NFIB that can be used to attack current and future federal legislature.

I certainly not read as many Con Law cases as you, but I would hazard an ignorant guess that there aren't that many that share as many Marbury characteristics as NFIB.

Sure Freud is credited for saying sometimes a cigar is a cigar, but if he had stopped his analysis of people and their actions there, he really would have had a lot of time on his hands. NFIB seems to be a wolf in Sheep's clothing or, a presentation of wilted roses by a guy hiding a shotgun behind his back. More precisely, NFIB seems to be a landlmine that is innocuous until it is triggered.

Posted by: Kris Nelson | Jun 29, 2012 12:52:36 PM

The genius of Marbury was that by not providing citations in support Marshall was able to fool a bunch of people into thinking he invented a power the Court obviously had all along.

Posted by: Herb | Jun 29, 2012 7:54:02 AM

Anon: I think Howard's second post has it exactly right; it's not clear that subsequent courts will count to five on the Commerce Clause analysis, and even if they were otherwise inclined to, they may never get the chance to revisit the question given the paucity of Commerce Clause statutes regulating pure inactivity.

Posted by: Steve Vladeck | Jun 29, 2012 4:25:54 AM

Re: "I just don't buy the necessary-to-the-result analysis"

Care to comment on Wasserman's post today?


Posted by: Anon | Jun 28, 2012 10:15:53 PM

It is definitely "wound-salving" on their part.

Posted by: BH | Jun 28, 2012 8:04:10 PM

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