Following the Supreme Court’s opinion in NFIB v. Sebelius, to the surprise of some, the Justices remanded the case of Liberty University v. Geithner. This case, which considered not only the individual mandate, but also the contraceptives mandate, was not definitively resolved by NFIB. Yesterday, the Fourth Circuit heard oral arguments, with the same panel that two years ago dismissed the challenge under the AIA.
According to a report from Politico (I haven’t seen the transcripts), Judge Motz had a very distinct view of the commerce clause following NFIB.
Klein argued that Congress has a long history of regulating employer health plans under the Commerce Clause — and that the employer mandate is no different.
But Motz suggested that last year’s health law ruling in the case brought by 26 states and the National Federation of Independent Business — in which the Supreme Court said the individual mandate is not valid under the Commerce Clause but valid under the taxing power — put new restrictions on the Commerce Clause.
“The Supreme Court opinion puts a new light, it seems to me, on the Commerce Clause,” Motz said. “It sounds like we’re in a new regime [post] NFIB.”
I think Judge Motz’s characterization of our “new regime” after NFIB is accurate. Her comment is a different way of describing what Larry Solum has referred to as our shifted “constitutional gestalt.” The gestalt is the notion that although NFIB did not repudiate the New Deal settlement, going forward, the scope of the federal government’s authority will be open to constitutional contestation.
I discuss this theme in my book, Unprecedented, and added this great quotation from Judge Motz:
Perhaps more importantly, beyond constitutional doctrine, NFIB v. Sebelius altered our collective consciousness about the relationship between the federal government and individual liberty. By shifting what Prof. Larry Solum has referred to as the “constitutional gestalt,” NFIB has forced us to rethink our assumptions about what we thought was settled law. In May 2013 during oral arguments over a followup case about the Affordable Care Act, Judge Diana Gribbon Motz observed that NFIB “puts a new light, it seems to me, on the Commerce Clause.” The Fourth Circuit judge, who two years earlier had dismissed a challenge to the ACA under the Anti-Injunction Act without addressing the commerce clause analysis, added, “it sounds like we’re in a new regime [post] NFIB.” Judge Motz is correct. NFIB has forced us to rethink our assumptions about what we thought was settled law.
H/T Randy Barnett