To Tax, to Spend, to Regulate

Abstract

This essay, a Comment for the Harvard Law Review’s November issue on the 2011 Supreme Court term, offers two alternative accounts of Chief Justice Roberts’s opinion in NFIB v. Sebelius. On one account, his opinion is predominantly motivated by institutionalist concerns with preserving the legitimacy and stature of the Court. From this perspective, the analytic contrasts in the Chief Justice’s treatment of the commerce, tax, and spending powers reflect two conflicting institutionalist imperatives: pulling the Court out of the political fray and underscoring the Court’s role as enforcer of constitutional limits on Congress. On the other account, the different parts of the Chief Justice’s opinion are closely linked and all share a libertarian resistance to compulsory measures in favor of choice and incentives.

Both accounts are true and NFIB’s future impact will turn on which impulse — institutionalism or anticompulsion — proves more ascendant in the Chief Justice’s approach to federal power. Moreover, despite appearing to signal new judicial scrutiny of federal spending and regulatory measures, NFIB’s judicial import will likely be more limited. Instead, its prime impact will be felt in federal-state negotiations in the administrative sphere.