How NFIB v. Sebelius Affects the Constitutional Gestalt
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Washington University
Law Review
VOLUME 91 NUMBER 1 2013
HOW NFIB V. SEBELIUS AFFECTS THE
CONSTITUTIONAL GESTALT*
LAWRENCE B. SOLUM*
I. INTRODUCTION: DIRECT AND INDIRECT LEGAL EFFECTS
This Essay examines the effects of the Supreme Court's decision in
National Federation of Independent Business v. Sebelius,1 in which the
Court addressed the constitutionality of the Affordable Care Act . More
precisely, what effects will NFIB have on the law-especially
constitutional law? We can divide these effects into two general
categories, direct and indirect. Direct legal effects are those created by
and through legal norms. They include the operation of legal orders (the
mandate in an appellate opinion) and legal rules (stare decisis and the
doctrine of law of the case). Indirect legal effects are mediated by causal
processes that are not themselves instantiations of legal rules. For
example, if a legal decision affects politics, and then the political change
affects the law, that change would constitute an indirect legal effect.
The Supreme Court's decision in NFIB v. Sebelius has already had
important direct legal consequences-The Patient Protection and
Affordable Care Act (ACA) has gone into effect, but with a significant
* © 2013 by the author. Permission is hereby granted to make copies (in part or whole) in all
media, subject only to the requirement that the title, author, and citation information be included in any
copy.
** John Carroll Research Professor of Law, Georgetown University Law Center. I owe thanks to
the participants at a conference of NFIB at Columbia University and a faculty workshop at
Georgetown University. I am particularly grateful to Jonathan Adler, Randy Barnett, Benjamin Cain,
Megan Degeneffe, Marc DeGirolami, Laura Donohue, Randy Kozel, David Law, Martin Lederman,
Trevor Morrison, and Asher Steinberg for helpful comments, criticisms, and suggestions.
1. 132 S. Ct. 2566 (2012) [hereinafter NFIB v. Sebelius or NFIB].
2. The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)
(codified as amended in scattered sections of 42 U.S.C.).](ViewImageLocal?handle=hein.journals/walq91&div=4&collection=&method=preview&ext=.png&size=3)
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How NFIB v. Sebelius Affects the Constitutional Gestalt
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