ABSTRACT
This chapter begins with an analysis of NFIB v Sebelius, turns next to a defense of the law and the welfare state from the perspective of laboring freedom. The case of NFIB v Sebelius centered upon a contestation over the meaning of two constitutional provisions: the Commerce Clause and the Spending Clause. A shifting majority limited the federal government's power on both fronts, but the fifth vote in the case, that of Chief Justice John Roberts, rescued the individual mandate via the taxing power and preserved the potentiality of Medicaid expansion but without its primary enforcement mechanism. Freedom requires less work and a criterion of judgment about the existence and expansion of the welfare state should be the extent to which it transforms that goal into a material reality. The chapter concludes with a consideration of how the foregoing defense of the welfare state in the name of freedom converges with key insights from the emerging field of vulnerability theory.
