The Presumption of Constitutionality and the Individual Mandate
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Description
The tax power question in NFIB was both statutory and constitutional, with the decision whether the ACA’s individual mandate fell within Congress’s tax power turning on whether as a matter of statutory construction it could be construed as simply taxing the decision not to purchase insurance. Resolving that question involved a choice between two constitutionally based rules of statutory construction: that statutes should be construed to avoid serious constitutional doubts, and that Congress must clearly invoke a head of legislative authority before it will be deemed to have exercised it. The Chief Justice embraced the first rule; the joint dissent implicitly chose the second. The Chief Justice’s choice was correct, but he should have acknowledged more forthrightly that statutory interpretation can be a mode of constitutional implementation and should have framed his analysis around the bedrock principle of judicial review known as the presumption of constitutionality.
First Page
124
Source Publication
The Health Care Case: The Supreme Court's Decision and Its Implications
Source Editors/Authors
Nathaniel Persily, Gillian E. Metzger, Trevor W. Morrison
Publication Date
2013
Publisher
Oxford University Press
Recommended Citation
Gillian E. Metzger & Trevor W. Morrison,
The Presumption of Constitutionality and the Individual Mandate,
The Health Care Case: The Supreme Court's Decision and Its Implications
124
(2013).
Available at:
https://gretchen.law.nyu.edu/fac-chapt/1990
