The pervasiveness of our healthcare problem seems to have bypassed most justices on the Supreme Court in the landmark case National Federation of Independent Business v. Sebelius (NFIB). And early commentary predominantly has focused on the constitutionality of the individual mandate, which codified the idea that Americans must have minimum health insurance coverage by January 1, 2014 or pay a tax penalty. Further narrowing the conversation, much of the postdecision commentary has also focused on Chief Justice Roberts’s constitutional analysis and its interplay with the joint dissent. This narrow scrutiny has resulted in missed opportunities: first, a critique of the justices’ stilted legislative interpretation and lack of deference to Congress’s legislative expertise. And second, an appreciation for Justice Ginsburg’s dissenting and concurring opinion, which approached the constitutional questions in NFIB with an emphasis on understanding the nature of the healthcare crisis that led to the legislative choices in the ACA. Justice Ginsburg’s nuanced approach to the facts in NFIB led her to the correct constitutional analysis. This essay will shine a light on these issues with a particular focus on Justice Ginsburg’s approach to the case.

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University of Pennsylvania Journal of Constitutional Law Heightened Scrutiny, Vol. 15 (January 2013), pp. 43-55



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