The Supreme Court and the Individual Mandate

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. TJ says:

    I’m left a little confused about whether your list aims to be normative (i.e. the factors the court should use) or descriptive (i.e. the ones that they do use). If it is descriptive, I think the all-encompassing fourth factor is whether the Justices find the issue “interesting,” and the health care law has that in spades, so I think most of the money is on them granting it. As for whether they should, that is a much more difficult question.

  2. arthur says:

    The health care bill will be repealed only if (a) 60% of the Senate, 50% of the House, and the President vote to repeal or (b) two thirds of the House and Senate override a veto. If, say, 57% of the Senate and 61% of the House vote to repeal, or alternatively if 65% of the Senate, 65% of the House, and the Presidential candidate who received 51% of the vote but lost in the electoral college all favor repeal, the individual mandate will remain on the books. Not much of a reaffirmation, let alone a ruling on constitutionality.

  3. Gerard Magliocca says:


    Both descriptive and normative. I would say that interesting does not count as a sufficient motivation if you’re worried that you’ll lose, though.


    What if repeal of the individual mandate is tied to the next increase in the debt ceiling in 2013?

  4. Arthur,

    Then again, all of those difficulties facing repeal were also faced to pass it. Our current legislative process makes it difficult to pass laws, but easier to maintain them. If it passed with strong support but opponents can’t garner equally strong support to repeal it, then it’s fair to say it’s been “reaffirmed.”

  5. TJ says:

    Gerard, I agree that the preference for winning outweighs the preference for deciding interesting cases, but as a descriptive matter I think that individual justices will sometimes take a cases even when they are not certain they have the votes on the merits. After all, it needs to be remembered that the baseline of doing nothing is that the courts of appeals’ judgment becomes presumptively the final word. If the side that favors reversal thinks it has a 49% chance of getting AMK’s vote, that is probably better than a 100% chance of the courts of appeals (assuming they are unanimous and splitless) being treated as a definitive pronouncement.

  6. arthur says:

    3. Repeal will still require the supermajority numbers to be repealed, whether the reason is that the actors believe the law is unconstitutional, or unwise, or that it’s worth sacrificing in order to accomplish some other goal.

    Is your argument that the Supreme Court should presume that legislation that is not repealed quickly is Constitutional? That’s essentially an argument that Acts of Congress aren’t subject only to legislative review, and not to judicial review.

    4. If a legislature can create legislation only by majority or supermajority action, I don’t see the sense in which a minority has the ability to “reaffirm” legislation.

  7. “Is your argument that the Supreme Court should presume that legislation that is not repealed quickly is Constitutional?”

    The Supreme Court presumes that all legislation is constitutional.

  8. Chris Bryant says:


    I emphatically agree that the Supreme Court “should NOT take this case up next year.” The Supreme Court should intervene only when the courts of appeals are unable to settle a matter in a manner consistent with existing law (however that is understood) — by’ for example, dividing on the issue or by moving “too slowly.” We do not yet have a circuit split and may not ever have one. And the only “need” for swift settlement is a political one — either party will use a Supreme Court victory to beat the other over the head — which in my mind counsels in favor of Supreme Court retraint, not intrusion.

    This issue presents a great opportunity to undersore the point that “the law” including “constitutional law” is not just whatever five Justices happen to think (or feel) at any one point in time. The law is the verdict of our legal systm operating to well established norms, and absent a circuit split that verict can be supplied by the courts of appeals.

    Great post!