National Federation of Independent Business v. Sebelius

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
Rawlberto
Posts: 413
Joined: Mon Aug 23, 2010 9:43 pm

National Federation of Independent Business v. Sebelius

Postby Rawlberto » Sun Dec 02, 2012 4:49 am

Anyone have supplement analysis? I am sure many of us with Con Law will be dealing with a Commerce Clause issue.

What I took away is three issues in analyzing the case under the Commerce Clause
1) "Forcing" someone to be part of commerce is the answer to the question "well what can't Congress do under the Commerce Clause?"
2) This might be a signaling by the court analogous to Lopez and Morrison that there might be "roll back" on the issue of Commerce Clause
3) In allowing Obamacare to be upheld via the taxing cluase the court was able to protect Federalism. It was a compromise of losing the battle in order to win the war ie: Marbury v. Madison.

Anyone want to add or critique?

jaymaynard
Posts: 118
Joined: Sun Feb 06, 2011 6:58 am

Re: National Federation of Independent Business v. Sebelius

Postby jaymaynard » Sun Dec 02, 2012 3:07 pm

Rawlberto wrote:Anyone have supplement analysis? I am sure many of us with Con Law will be dealing with a Commerce Clause issue.

What I took away is three issues in analyzing the case under the Commerce Clause
1) "Forcing" someone to be part of commerce is the answer to the question "well what can't Congress do under the Commerce Clause?"
2) This might be a signaling by the court analogous to Lopez and Morrison that there might be "roll back" on the issue of Commerce Clause
3) In allowing Obamacare to be upheld via the taxing cluase the court was able to protect Federalism. It was a compromise of losing the battle in order to win the war ie: Marbury v. Madison.

Anyone want to add or critique?


Seems like you've pretty much got it. Obviously its a whole lot more nuanced than that but I'm not sure how much depth you're after.

User avatar
Rawlberto
Posts: 413
Joined: Mon Aug 23, 2010 9:43 pm

Re: National Federation of Independent Business v. Sebelius

Postby Rawlberto » Sun Dec 02, 2012 3:19 pm

jaymaynard wrote:
Rawlberto wrote:Anyone have supplement analysis? I am sure many of us with Con Law will be dealing with a Commerce Clause issue.

What I took away is three issues in analyzing the case under the Commerce Clause
1) "Forcing" someone to be part of commerce is the answer to the question "well what can't Congress do under the Commerce Clause?"
2) This might be a signaling by the court analogous to Lopez and Morrison that there might be "roll back" on the issue of Commerce Clause
3) In allowing Obamacare to be upheld via the taxing cluase the court was able to protect Federalism. It was a compromise of losing the battle in order to win the war ie: Marbury v. Madison.

Anyone want to add or critique?


Seems like you've pretty much got it. Obviously its a whole lot more nuanced than that but I'm not sure how much depth you're after.


More than what I just gave. My class was 80% Commerce Clause, yet we only touched on this case for a day or two. Not because he thought it was unimportant but we were behind in the syllabus and his desire that we figure it out on our own.

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: National Federation of Independent Business v. Sebelius

Postby ph14 » Sun Dec 02, 2012 3:30 pm

Rawlberto wrote:Anyone have supplement analysis? I am sure many of us with Con Law will be dealing with a Commerce Clause issue.

What I took away is three issues in analyzing the case under the Commerce Clause
1) "Forcing" someone to be part of commerce is the answer to the question "well what can't Congress do under the Commerce Clause?"
2) This might be a signaling by the court analogous to Lopez and Morrison that there might be "roll back" on the issue of Commerce Clause
3) In allowing Obamacare to be upheld via the taxing cluase the court was able to protect Federalism. It was a compromise of losing the battle in order to win the war ie: Marbury v. Madison.

Anyone want to add or critique?


1) It does seem that the Court has drawn a distinction between "activity" and "inactivity," and forcing someone to purchase a product or participate in a market is beyond the scope of the Commerce Clause power. It seems the distinction between this and Wickard is pretty thin, though. By limiting the amount of wheat the farmer could produce, he is (more or less) forced into the market to purchase the wheat he needs.
2) Yes, or at least a sign they aren't going to give a blank check. Although it seems to me that the Sebelius was a much harder case to declare beyond the scope of the Commerce power. Lopez involved guns near schools, with no requirement that the guns had ever been in the stream of interstate commerce (and states already have police power to legislate in this area). That doesn't seem like a hard case really to say that this is beyond the scope of the Commerce Clause. And Morrison involved the Violence Against Women Act, with the only connection to commerce a fairly attenuated one (domestic violence made women less productive, which hurt the economy? something along those lines) (and states already have police power here as well). But Sebelius dealt with a nationwide problem that states couldn't fix on their own (unlike Lopez/Morrison). And it seems to be much more direct connection on the economy and interstate commerce. So in a way, you could see this as more of a "roll back" than Lopez and Morrison.
3) I'm not exactly sure what you are trying to say here. What do you mean "it was a compromise to win the war but lose the battle"? I think the Court would have protected federalism just as much in striking down the Healthcare law. It's not like it had to uphold it to "win the war." Either way, the Court would have held that it exceeded the commerce power, which was the chief federalism concern here. I think upholding it on a taxing power involves mainly extrajudicial considerations, such as not wanting the Court to appear too partisan, wanting to give the appearance of "calling balls and strikes," not wanting to strike down a sitting President's chief piece of domestic legislation (and do so during an election year), and perhaps Chief Justice Roberts even believed that his duty was to save a statute if it was at all possible and he was just doing what he believed in.

Gorki
Posts: 772
Joined: Wed Jul 11, 2012 12:41 pm

Re: National Federation of Independent Business v. Sebelius

Postby Gorki » Sun Dec 02, 2012 3:35 pm

Is there a redacted version of this case somewhere? We talked about it one day barely, but Prof. now mentioned it will be tested and it was not in my casebook... I could just read the relevant sections on WL but, uggggh.

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: National Federation of Independent Business v. Sebelius

Postby ph14 » Sun Dec 02, 2012 3:40 pm

Gorki wrote:Is there a redacted version of this case somewhere? We talked about it one day barely, but Prof. now mentioned it will be tested and it was not in my casebook... I could just read the relevant sections on WL but, uggggh.


http://en.wikipedia.org/wiki/National_F ... ._Sebelius
--LinkRemoved--
--LinkRemoved--
--LinkRemoved--

Gorki
Posts: 772
Joined: Wed Jul 11, 2012 12:41 pm

Re: National Federation of Independent Business v. Sebelius

Postby Gorki » Sun Dec 02, 2012 3:44 pm

ph14 wrote:
Gorki wrote:Is there a redacted version of this case somewhere? We talked about it one day barely, but Prof. now mentioned it will be tested and it was not in my casebook... I could just read the relevant sections on WL but, uggggh.


http://en.wikipedia.org/wiki/National_F ... ._Sebelius
--LinkRemoved--
--LinkRemoved--
--LinkRemoved--


Excellent, thanks.

User avatar
ph14
Posts: 3225
Joined: Mon Sep 12, 2011 11:15 pm

Re: National Federation of Independent Business v. Sebelius

Postby ph14 » Sun Dec 02, 2012 3:45 pm

Gorki wrote:
ph14 wrote:
Gorki wrote:Is there a redacted version of this case somewhere? We talked about it one day barely, but Prof. now mentioned it will be tested and it was not in my casebook... I could just read the relevant sections on WL but, uggggh.


http://en.wikipedia.org/wiki/National_F ... ._Sebelius
--LinkRemoved--
--LinkRemoved--
--LinkRemoved--


Excellent, thanks.


Second link is probably the best if you are just looking for a quick and accurate overview of the actual case.

Gorki
Posts: 772
Joined: Wed Jul 11, 2012 12:41 pm

Re: National Federation of Independent Business v. Sebelius

Postby Gorki » Sun Dec 02, 2012 3:48 pm

ph14 wrote:
Gorki wrote:
ph14 wrote:
Gorki wrote:Is there a redacted version of this case somewhere? We talked about it one day barely, but Prof. now mentioned it will be tested and it was not in my casebook... I could just read the relevant sections on WL but, uggggh.


http://en.wikipedia.org/wiki/National_F ... ._Sebelius
--LinkRemoved--
--LinkRemoved--
--LinkRemoved--


Excellent, thanks.


Second link is probably the best if you are just looking for a quick and accurate overview of the actual case.


I read it when it came out, but it has been awhile and want to make sure that I am equipped with what court actually said and not my hazy recollection + WaPo/NYT simplifications. This stuff really helps.

jaymaynard
Posts: 118
Joined: Sun Feb 06, 2011 6:58 am

Re: National Federation of Independent Business v. Sebelius

Postby jaymaynard » Sun Dec 02, 2012 3:51 pm

Rawlberto wrote:
jaymaynard wrote:
Rawlberto wrote:Anyone have supplement analysis? I am sure many of us with Con Law will be dealing with a Commerce Clause issue.

What I took away is three issues in analyzing the case under the Commerce Clause
1) "Forcing" someone to be part of commerce is the answer to the question "well what can't Congress do under the Commerce Clause?"
2) This might be a signaling by the court analogous to Lopez and Morrison that there might be "roll back" on the issue of Commerce Clause
3) In allowing Obamacare to be upheld via the taxing cluase the court was able to protect Federalism. It was a compromise of losing the battle in order to win the war ie: Marbury v. Madison.

Anyone want to add or critique?


Seems like you've pretty much got it. Obviously its a whole lot more nuanced than that but I'm not sure how much depth you're after.


More than what I just gave. My class was 80% Commerce Clause, yet we only touched on this case for a day or two. Not because he thought it was unimportant but we were behind in the syllabus and his desire that we figure it out on our own.


Ok. Well we had a midterm that was probably 75% or so Commerce Clause stuff and we had an entire essay question over Sabelius. I got the highest grade in the class (not bragging, just qualifying that you should be able to trust my response). Here's what I had in my outline over Sabelius and how it comports with precedent.

A. It is consistent with Morrison and Lopez in that it technically does not comport with one of the 4 categories since Congress is attempting to regulate the absence of commerce, however the Court has never stated that Congress does not possess such power, and Congress has compelled people to do things before (such as the draft)
a. The Court always looked at "activity" as a prerequisite in all precedent
b. In all prior Commerce Clause cases, Congress has regulated preexisting economic activity - it has never been permitted to anticipate the activity itself
B. It is inconsistent with Raich in that, in refusing to uphold the ACA on Commerce Clause grounds, it undermines the idea that a statute may be upheld on commerce clause grounds if economic activity substantially affects interstate commerce when the class of activities, taken in the aggregate, has some substantial effect on interstate commerce. Congress had a great deal of data showing this correlation, thus the decision is also inconsistent because it denies Congress its "rational basis" deference (Katzenbach)
a. Sebelius is more like Raich than Morrison, however the court strikes down the provision in Sebilius and upheld the provision in Raich over concern that, otherwise, precedent would allow Congress to force its citizens to do something any time enough of them are not doing something and consequently affecting the economy
b. Further, the individual mandate unquestionably bears a "reasonable connection" to Congress' goal of protecting the healthcare market (Raich)
C. It is inconsistent with Lopez and Morrison in that it is counter to the idea that Congress has the power to regulate economic activity that is not necessarily interstate commerce under the Commerce Clause, based on the aggregation, substantial effect theory
a. It is difficult to argue that health insurance is not economic in nature, however
A. However, if you don't categorize health insurance as economic, you have the inverse result
b. Sebelius is more like Wickard (sale of wheat) than Morrison (violence against women) because the sale of wheat, like health insurance, is economic in nature; the link between the activity and the economy is not attenuated in nature
D. It is consistent with traditional notions of federalism in that it prevents Congress from usurping the state's traditional police powers except where explicit interstate commerce issues arise
to regulate classes of activities that have the substantial effect
E. It is consistent with Morrison in that it reiterates the notion that the link between the activity and interstate commerce cannot be too attenuated. Otherwise, you run the risk of a slippery slope.
F. It is consistent with Raich in that it reinforces that while Congress does have the power to regulate classes of activities, it does not have the power to regulate classes of individuals, which the government sought to do here
a. Government sought to define the class as "those engaged in the healthcare market" but the Court deemed this too broad and Congress was effectively trying to regulate everyone
G. It is consistent with Wickard in that it is a recognition that Wickard is the high watermark of congressional power under the Commerce Clause and to take it to the level proposed by the government would far exceed the standard in Wickard
H. In a sense it is consistent with early 20th century commerce clause jurisprudence because it seeks to inject rigid analysis into the commerce clause (activity vs. inactivity is akin to direct/indirect effects or commerce/manufacturing distinction) - EC Knight, Carter Coal, Schechter Poultry¬ - this rigid formalism has proven unworkable in the past
a. As such, it is inconsistent with Hammer, which states that regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause
b. Further, it is inconsistent with many prior Commerce Clause cases (Wickard, Lopez, Jones & Laughlin, etc) in that the majority in Sebelius rejects the notion that Congress should have the ability to legislate based on practical considerations and espouses rigid formalism instead
I. It is consistent with New York, Printz, Lopez and Morrison in reflecting the notion that the Commerce Clause is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce
J. It comports with Raich in that Raich dealt with marijuana, a fungible good with no other practical means of regulation; here Congress had other means available to it less repugnant to state's rights that it could employ
K. It is consistent with earlier Commerce Clause cases, such as Hammer, that neglect to consider the severe consequence that the "race to the bottom" could have on the interstate economy. Even though it is a traditional state police power concern, states will not do so out of fear that uninsured individuals from states that do not mandate health care insurance will flock there to take advantage
L. It is inconsistent with Wickard and Raich in that it contradicts the notion that Congress can dictate the conduct of an individual today because of prophesied future activity
a. It undermines Congress' ability to determine the market from long-term perspective, as it did in those cases
b. Congress was explicitly legislating based on expected future effects of marijuana entering the interstate market
c. So, it can be argued that the provisions in Sabelius are even more certain to occur because the chances that someone will enter the healthcare market are far higher than the chances that someone will enter the market for marijuana
M. If it truly is a certainty that everyone will enter the healthcare market at some time, then Congress really isn't mandating that everyone enter the healthcare market, but rather regulating the means by which they do so (Heart of Atlanta)

User avatar
Rawlberto
Posts: 413
Joined: Mon Aug 23, 2010 9:43 pm

Re: National Federation of Independent Business v. Sebelius

Postby Rawlberto » Mon Dec 03, 2012 2:14 am

jaymaynard wrote:
Rawlberto wrote:
jaymaynard wrote:
Rawlberto wrote:Anyone have supplement analysis? I am sure many of us with Con Law will be dealing with a Commerce Clause issue.

What I took away is three issues in analyzing the case under the Commerce Clause
1) "Forcing" someone to be part of commerce is the answer to the question "well what can't Congress do under the Commerce Clause?"
2) This might be a signaling by the court analogous to Lopez and Morrison that there might be "roll back" on the issue of Commerce Clause
3) In allowing Obamacare to be upheld via the taxing cluase the court was able to protect Federalism. It was a compromise of losing the battle in order to win the war ie: Marbury v. Madison.

Anyone want to add or critique?


Seems like you've pretty much got it. Obviously its a whole lot more nuanced than that but I'm not sure how much depth you're after.


More than what I just gave. My class was 80% Commerce Clause, yet we only touched on this case for a day or two. Not because he thought it was unimportant but we were behind in the syllabus and his desire that we figure it out on our own.


Ok. Well we had a midterm that was probably 75% or so Commerce Clause stuff and we had an entire essay question over Sabelius. I got the highest grade in the class (not bragging, just qualifying that you should be able to trust my response). Here's what I had in my outline over Sabelius and how it comports with precedent.

A. It is consistent with Morrison and Lopez in that it technically does not comport with one of the 4 categories since Congress is attempting to regulate the absence of commerce, however the Court has never stated that Congress does not possess such power, and Congress has compelled people to do things before (such as the draft)
a. The Court always looked at "activity" as a prerequisite in all precedent
b. In all prior Commerce Clause cases, Congress has regulated preexisting economic activity - it has never been permitted to anticipate the activity itself
B. It is inconsistent with Raich in that, in refusing to uphold the ACA on Commerce Clause grounds, it undermines the idea that a statute may be upheld on commerce clause grounds if economic activity substantially affects interstate commerce when the class of activities, taken in the aggregate, has some substantial effect on interstate commerce. Congress had a great deal of data showing this correlation, thus the decision is also inconsistent because it denies Congress its "rational basis" deference (Katzenbach)
a. Sebelius is more like Raich than Morrison, however the court strikes down the provision in Sebilius and upheld the provision in Raich over concern that, otherwise, precedent would allow Congress to force its citizens to do something any time enough of them are not doing something and consequently affecting the economy
b. Further, the individual mandate unquestionably bears a "reasonable connection" to Congress' goal of protecting the healthcare market (Raich)
C. It is inconsistent with Lopez and Morrison in that it is counter to the idea that Congress has the power to regulate economic activity that is not necessarily interstate commerce under the Commerce Clause, based on the aggregation, substantial effect theory
a. It is difficult to argue that health insurance is not economic in nature, however
A. However, if you don't categorize health insurance as economic, you have the inverse result
b. Sebelius is more like Wickard (sale of wheat) than Morrison (violence against women) because the sale of wheat, like health insurance, is economic in nature; the link between the activity and the economy is not attenuated in nature
D. It is consistent with traditional notions of federalism in that it prevents Congress from usurping the state's traditional police powers except where explicit interstate commerce issues arise
to regulate classes of activities that have the substantial effect
E. It is consistent with Morrison in that it reiterates the notion that the link between the activity and interstate commerce cannot be too attenuated. Otherwise, you run the risk of a slippery slope.
F. It is consistent with Raich in that it reinforces that while Congress does have the power to regulate classes of activities, it does not have the power to regulate classes of individuals, which the government sought to do here
a. Government sought to define the class as "those engaged in the healthcare market" but the Court deemed this too broad and Congress was effectively trying to regulate everyone
G. It is consistent with Wickard in that it is a recognition that Wickard is the high watermark of congressional power under the Commerce Clause and to take it to the level proposed by the government would far exceed the standard in Wickard
H. In a sense it is consistent with early 20th century commerce clause jurisprudence because it seeks to inject rigid analysis into the commerce clause (activity vs. inactivity is akin to direct/indirect effects or commerce/manufacturing distinction) - EC Knight, Carter Coal, Schechter Poultry¬ - this rigid formalism has proven unworkable in the past
a. As such, it is inconsistent with Hammer, which states that regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause
b. Further, it is inconsistent with many prior Commerce Clause cases (Wickard, Lopez, Jones & Laughlin, etc) in that the majority in Sebelius rejects the notion that Congress should have the ability to legislate based on practical considerations and espouses rigid formalism instead
I. It is consistent with New York, Printz, Lopez and Morrison in reflecting the notion that the Commerce Clause is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce
J. It comports with Raich in that Raich dealt with marijuana, a fungible good with no other practical means of regulation; here Congress had other means available to it less repugnant to state's rights that it could employ
K. It is consistent with earlier Commerce Clause cases, such as Hammer, that neglect to consider the severe consequence that the "race to the bottom" could have on the interstate economy. Even though it is a traditional state police power concern, states will not do so out of fear that uninsured individuals from states that do not mandate health care insurance will flock there to take advantage
L. It is inconsistent with Wickard and Raich in that it contradicts the notion that Congress can dictate the conduct of an individual today because of prophesied future activity
a. It undermines Congress' ability to determine the market from long-term perspective, as it did in those cases
b. Congress was explicitly legislating based on expected future effects of marijuana entering the interstate market
c. So, it can be argued that the provisions in Sabelius are even more certain to occur because the chances that someone will enter the healthcare market are far higher than the chances that someone will enter the market for marijuana
M. If it truly is a certainty that everyone will enter the healthcare market at some time, then Congress really isn't mandating that everyone enter the healthcare market, but rather regulating the means by which they do so (Heart of Atlanta)


This is so beast!

jaymaynard
Posts: 118
Joined: Sun Feb 06, 2011 6:58 am

Re: National Federation of Independent Business v. Sebelius

Postby jaymaynard » Mon Dec 03, 2012 3:22 am

Rawlberto wrote:This is so beast!


Glad to help

User avatar
TatteredDignity
Posts: 1520
Joined: Fri Jul 04, 2008 2:06 am

Re: National Federation of Independent Business v. Sebelius

Postby TatteredDignity » Mon Dec 03, 2012 3:36 am

The takeaway of Sebelius is that the court cares more about principles than doctrine, and will write as many words as necessary to cram the doctrine into their value judgments. This was a win for the doctrinal indeterminacy movement

Also, Roberts was really forced to take some indefensible positions to reach his desired result, and it was entertaining to read ginsburg's line by line skewering of his opinion.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: LandMermaid and 5 guests