Realism Over Formalism and the Presumption of Constitutionality: Chief Justice Roberts\u27 Opinion Upholding the Individual Mandate

This article examines Chief Justice Roberts’ opinion in National Federal of Independent Business v. Sebelius, a decision that upheld the constitutionality of key provisions in the Affordable Care Act. The individual mandate, the focus of this article and perhaps the most hotly contested provision in the Act, requires private citizens to purchase health insurance or face financial penalty for remaining uninsured. The individual mandate has had and will continue to have important ramifications both for the national economy and for constitutional interpretation in future cases. First, the article addresses important repercussions of upholding the Act, including significant consequences for the health care industry and for the economy as a whole. Next, the article discusses the two approaches used by Chief Justice Roberts in analyzing the Act’s individual mandate. The article contrasts the formalist approach applied by Justice Roberts to find that the individual mandate was not a “tax” within the meaning of the Anti-Injunction Act and the functional approach applied to find that the individual mandate was a “tax” under the General Welfare Clause of the U.S. Constitution. Finally, the article highlights Justice Roberts’ deference to Congress in assessing the individual mandate’s constitutionality