Political Controversies

National Federation of Independent Business v. Sebelius was the most anticipated decision of the 2012 term. At stake was the Obama administration’s ‘‘signature’’ achievement, the Patient Protection and Affordable Care Act. The ACA represented an effort by President Barack Obama and his Democratic congressional allies to revolutionize the American health care system. The law was and is so complex that one of the bill’s principal supporters, then-House Speaker Rep. Nancy Pelosi, famously suggested to her colleagues that ‘‘we have to pass the bill so that you can find out what is in it.’’ The plaintiffs in the case argued that one of the ACA’s key provisions, the requirement that nearly every American purchase a congressionally prescribed package of health care insurance benefits, exceeded Congress’s enumerated powers (particularly its authority to regulate interstate commerce) and impermissibly coerced the states in violation of the Constitution’s federalist structure. The Court ruled that the commerce power could not support the ‘‘individual mandate’’ to purchase health insurance but, by a separate majority, also concluded that the mandate could be sustained as an exercise of Congress’s power to lay and collect taxes. As part of a jointly written dissenting opinion, Justices Scalia, Kennedy, Thomas, and Alito disagreed, arguing that because Congress characterized the payment as a penalty, to instead characterize it as a tax would amount to rewriting the Act. On cue, the opinion’s release was immediately followed by a flood of stories that the Chief Justice had changed his vote after initially siding with conservatives to strike it down, and that Roberts did so in response to the mounting pressure from Obama and others to uphold the Act. These rumors, like the opinion in the case itself, did nothing to quell the debate over the Act’s legitimacy. At the heart of Robert’s argument was his belief that it was not the Court’s role to overturn a law if it could be found to be constitutional, and that it was up to the electorate to hold Congress responsible for bad or ill-advised legislation. Indeed, the unpopularity of the law led to massive losses for Democrats in the House and the Senate in the midterm elections. But the fact that the Court found the law to be constitutional in the summer prior to the 2012 presidential election contributed to the law’s legitimacy—and possibly to President Obama’s reelection. In your opinion, do you think that political controversies like Obamacare, same sex marriage, or abortion (to name a few) should be resolved in the political sphere instead of in the Supreme Court? Do you believe that it is a salutary development that the U.S. political system has come to rely on judicial review—and, to some extent, judicial supremacy—to perform valuable settlement and legitimation functions?