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The Future of Healthcare Reform In the United States$
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Anup Malani and Michael H. Schill

Print publication date: 2015

Print ISBN-13: 9780226254951

Published to Chicago Scholarship Online: May 2016

DOI: 10.7208/chicago/9780226255002.001.0001

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Federalism, Liberty, and Risk in NFIB v. Sebelius

Federalism, Liberty, and Risk in NFIB v. Sebelius

(p.32) Chapter Two Federalism, Liberty, and Risk in NFIB v. Sebelius
The Future of Healthcare Reform In the United States

Aziz Z. Huq

University of Chicago Press

This chapter offers an account of how NFIB v. Sebelius fits into the constitutional tradition. The opinion rests on three central questions: (1) Is imposition of the individual mandate within Congress's Article I power to regulate commerce, or, (2) alternatively within its power to tax for the General Welfare? And (3) does the Medicaid expansion violate the constitutional principle of federalism in the Tenth Amendment to the Constitution? The chapter argues that the Court's reasoning takes root in profound first-order normative principles about the appropriate role of the federal government. The NFIB decision superficially turns on the relationship of the federal government to the states, but federalism explains very little of its outcome. Rather, a dyad of opposing values—liberty and risk—animates the Court's ruling, which is better glossed as a function of the justices' normative judgments about the permissible balance between risk and liberty that the federal government can strike. A constitutionalized view of normatively permissible risk-liberty trade-off best explains NFIB.

Keywords:   health care reform, Affordable Care Act, minimum essential coverage, individual mandate, ObamaCare, federalism, conditional spending, risk regulation, Necessary and proper

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