The Volokh Conspiracy
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In 2017, then-Professor Amy Coney Barrett wrote a review of Randy Barnett's book, Our Republican Constitution. I encourage you to read the article in Constitutional Commentary. She articulates her vision of judicial philosophy quite cogently. Here, I want to draw attention to one passage about the Obamacare decision.
She begins by noting that Randy's book was motivated, in part, by the Chief's opinion in NFIB v. Sebelius.
Our Republican Constitution is animated in large part by Barnett's frustration with what he regards as a misguided attachment to judicial restraint, particularly on the part of conservatives.51
FN51: See p. 17 (asserting that with NFIB v. Sebelius, "[t]he chickens of the conservative commitment to judicial restraint had thus come home to roost."); see also p. 81 (asserting that "the tragedy of the Supreme Court's decision in the Obamacare case was made possible by modern-day 'judicial conservatives' accepting as valid the progressive attack on our Republican Constitution."); p. 248 ("The visibility of our Obamacare challenge and the way a Republican-nominated, conservative chief justice snatched defeat from the jaws of victory, may prove to be a political inflection point.").
Next, Barrett offers a brief characterization of the Chief's controlling opinion that has been quoted repeatedly:
In NFIB v. Sebelius, the inspiration for Barnett's book, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power.52
FN52: 52. See NFIB v. Sebelius, 132 S. Ct. 2566, 2593–2600 (2012) (characterizing the "penalty" imposed by the individual mandate as a "tax"). The other four justices in the majority on this issue would not have needed to construe the penalty as a tax to save the statute, because they thought that the Commerce Clause authorized Congress to impose the mandate. See id. at 2609 (Ginsburg, J., concurring in part, dissenting in part) ("Unlike the Chief Justice, however, I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision."). The four dissenting justices objected that "[w]e have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty." See id. at 2651 (joint opinion of Scalia, J., Kennedy, J., Thomas, J., and Alito, J., dissenting).
As a threshold matter, Her recitation of NFIB is accurate. She did not repeat the shibboleth that the Chief upheld the mandate as a tax. He construed the penalty as a tax, and that decision allowed him to uphold the statute (Section 5000A). I agree the Chief's reading was not "plausible."
Is this statement relevant to the pending challenge in California v. Texas? Critics will no doubt call on her to recuse. A few thoughts. First, Texas has not asked the Court to reverse, or reconsider NFIB. Indeed, the Plaintiffs are relying on the Chief's saving construction to mount the challenge. Second I don't know that calling a Supreme Court decision not "plausible" would warrant disqualification in all cases concerning that precedent. She did not prejudge how that precedent would affect a given controversy. Third, Supreme Court Justices tend to follow different standards for recusal than lower court judges, in order to avoid a short-handed Court. I am sure Judge Barrett will address this question during her hearing.
A personal note. I have been dithering about finishing my third book on the Obamacare litigation. I think the trilogy will be ready in 2021 or so.
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