Eric R. Claeys: Sebelius and the Election

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

The Supreme Court took Sebelius in order to consider two important federalism questions. In one issue, not relevant here, Obamacare opponents challenged provisions expanding state requirements in relation to Medicaid. What is relevant here is that they also challenged the “individual mandate,” codified in 26 U.S.C. § 5000A. This provision imposes what the statute calls a “requirement” (effective 2014) that every U.S. citizen purchase adequate health-care coverage; anyone who fails to do so will incur what the statute calls a “penalty” of $750 (subject to inflation adjustments and exemptions).

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