ABSTRACT
The Supreme Court deciding the fate of the Affordable Care Act (ACA) had great political salience for the 2012 presidential election and considerable policy significance, in terms of upholding the central pillar of health care reform. Yet doctrinally, NFIB v. Sebelius is just one case, and a case with a fractured majority coalition, and so its significance may appear limited. However, in his opinion of the Court, Chief Justice Roberts created five significant new limitations on federal legislative power, including dramatically reading down both of Congress’s main avenues of regulatory power—the Commerce Clause and the taxing and spending powers. The five conditions on power were not only written broadly, so as to hem in federal legislative power in the future, but they were also written ambiguously, so as to expand judicial discretion and thus judicial power. By redefining key tests in five of the most significant areas of constitutional law but only providing amorphous answers, the legacy of Sebelius will not only be the diminishment of congressional power but also the enormous judicial discretion it gives future courts to create more such limits.
