Wilson Huhn


In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part IIIC of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be construed in such a way as to render it constitutional. The confluence of realist analysis and the presumption of constitutionality resulted in a decision ruling that the Court should uphold the individual mandate as a proper exercise of Congress’s power to tax. Part II of this essay discusses the significance of this ruling in light of its political, medical, and economic consequences. Parts III and IV contrast the formalist approach used by Justice Roberts in finding that the individual mandate was not a “tax” within the meaning of the Anti-Injunction Act with the functional approach he used in finding that the individual mandate is a tax for purposes of the General Welfare Clause. Part IV describes how Justice Roberts deferred to Congress in considering the constitutionality of the individual mandate.