Denning’s Recent Article to Appear in the HASTINGS CONSTITUTIONAL LAW QUARTERLY

Posted: Thu, 09/06/2012 - 10:58

Brannon DenningLaw Professor Brannon P. Denning’s recent article co-authored with Glenn H. Reynolds, “National Federation of Independent Business v. Sebelius: Five Takes,” (article introduction provided below) has been accepted by the Hastings Constitutional Law Quarterly and will appear in Volume 40. 

The Hastings Constitutional Law Quarterly is published by the University of California Hastings College of the Law.  According to their website, “the Hastings Constitutional Law Quarterly is the country's oldest law journal devoted exclusively to constitutional law.  Our primary goal is to produce an innovative and scholarly review of current constitutional issues.”

Professor Denning is a graduate of the University of the South, the University of Tennessee School of Law, and Yale Law School.  Professor Denning writes in the area of constitutional law; specifically he has written on the Commerce Clause and the dormant commerce clause; judicial and executive branch appointments; the constitutional amendment process; foreign affairs and the Constitution; and the Second Amendment. Professor Denning’s complete biography can be found on the law school’s faculty page.

Article Introduction:

National Federation of Independent Business v. Sebelius: Five Takes

In its recent decision in NFIB v. Sebelius, the Supreme Court found that the Patient Protection and Affordable Care Act (popularly known as “ObamaCare”) was an unconstitutional assertion of power under Congress’s power to regulate commerce among the several states, but that it was nonetheless sustainable under Congress’s power to tax.  The Court also found limits on the spending power.

The decision, one of the most eagerly awaited of the 21st Century, had aroused much speculation – nearly all of which turned out to be wrong – and resulted in considerable commentary.  In this article, following our now-famous “Five Takes” format, we will look at some possible meanings and implications of the Supreme Court’s decision.

We first consider possible analogies between NFIB and two other famous cases whose opinions are held out as deftly straddling the line between principle and prudence: Marbury v. Madison and the Bakke case (Takes One and Two).  Takes Three and Four examine the opinion though the lens of constitutional theory.  We consider whether the decision, Chief Justice Roberts’s opinion especially, served what Charles Black called the Court’s “legitimating” function, quelling doubts about the Act’s constitutionality and, thus, its legitimacy.  We further consider whether, in ultimately upholding the Act despite its relative unpopularity, Chief Justice Roberts’s opinion could be seen as an example of judicial restraint a la James Bradley Thayer.  Finally, in Take Five, we consider that the peculiar construction of the opinion handed the Administration a somewhat Pyrrhic victory while laying the foundation for robust judicially-enforced limits on congressional power.