Judicial deference and the chief justice
In a May 2016 episode on the Supreme Court and the presidential election, Bob Zadek raised NFIB v. Sebelius to illustrate Chief Justice John Roberts’s view of the judicial role. Zadek said Roberts famously stated in the case that it is not his job to rethink legislation, and that if voters dislike what their legislators do, the political process lets them vote those legislators out; it is not the Court’s job to fix the errors of Congress. Zadek characterized this as profound judicial deference, noting that Roberts had his own doubts about whether the statute was constitutional Ilya Shapiro on the Supreme Court in the Balance (2016).
The case entered the conversation as a measure of a nominee rather than as a subject in itself. Zadek turned from Roberts to Judge Merrick Garland’s pending nomination, saying Garland had demonstrated profound judicial deference, and asked guest Ilya Shapiro whether Garland was a judge who did not prefer an activist approach. Shapiro agreed, saying Garland does not go out of his way to make a name for himself and does not write big, bold, radical opinions, but defers to the government as much as possible — whether the agency is the Environmental Protection Agency, law enforcement, or the National Labor Relations Board. Shapiro added that Garland’s being a so-called moderate might be worse than a so-called progressive radical, since on some issues the left and the right line up against the pragmatic middle. He said it looked like Garland would not get a hearing or a vote until after the election, and that Republicans were justified in that position because the direction of the court was in the balance with the vacancy Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro was identified at the close of the segment as a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, with books to his name and testimony before Congress Ilya Shapiro on the Supreme Court in the Balance (2016).
The Court, the voter, and the limits of democratic competence
In the same episode, after Shapiro’s segment ended, Zadek used the discussion as a springboard to a broader argument about the Supreme Court’s place in elections. He called the Court the single most important issue, describing it as holding a profound amount of power over everyday life while its justices, like all federal judges, are unelected, serve for life, and cannot be removed except for extreme misbehavior. Because they are not directly answerable to anybody, Zadek said, appointment to the Court lets a president extend influence far into the future, long after leaving office Ilya Shapiro on the Supreme Court in the Balance (2016).
From there Zadek argued that voting is hard and the issues complex, and that it is almost unfair — from the standpoint of studying democracy — to expect voters, whose single vote matters very little and who have lives of their own, to spend the time and muster the inclination to study something like the operation of the Supreme Court merely to vote intelligently in a presidential election. He called that a waste of the voter’s time, since the benefit is nonexistent compared with the time required, and said voters should not be criticized or punish themselves for failing to understand the Court’s operation and its interaction with everyday life at the necessary depth. The Court is only one issue, he added, alongside complex economic, social, and medical questions; to vote intelligently one would have to be a full-time political science student. The excerpt breaks off as he asks how democracy can survive when the requirement — Ilya Shapiro on the Supreme Court in the Balance (2016).
Anti-commandeering and the coercion of states
NFIB v. Sebelius returned in a December 2016 episode with Alex Nowrasteh, in a discussion of how far a new administration could go on immigration without legislation. Zadek interrupted Nowrasteh’s account of enforcement to raise anti-commandeering, which he described as a little-known but important part of constitutional law: the federal government is not permitted to command or compel local law enforcement to enforce federal law. Zadek said the federal government might be able to do it coercively by denying other federal benefits to states and localities, but that even there the Supreme Court is sensitive to the issue, and asked whether obtaining the assistance of local law enforcement — think sanctuary cities — is constitutionally tricky alex_nowrasteh__how_prop__187_turned_california_blue.
Nowrasteh agreed that it is constitutionally tricky. He said the Obama administration had done it from 2009 to 2011 and triggered a backlash that made it back down on immigration enforcement. He then cited the Obamacare decision — NFIB v. Sebelius — as limiting the ability of the federal government to use funds to coerce states into adopting certain activities. Because of that decision, he said, the federal government is more limited than it was during the first term of the Obama administration in how it can use funds to coerce states into going along with its opinion; if it does so, the law must spell out clearly and explicitly why funds are denied or attached to cities such as sanctuary cities, and that is not currently in the law, so Congress would have to pass a law alex_nowrasteh__how_prop__187_turned_california_blue.
Zadek closed the exchange by saying the sanctuary city movement — San Francisco, New York, other major urban centers — is on the right side of the Constitution in refusing to assist the feds in enforcing federal law, which he called a little-known fact and a very interesting aspect of the 10th Amendment of the Bill of Rights alex_nowrasteh__how_prop__187_turned_california_blue.
Across episodes
Two episodes touch NFIB v. Sebelius, and they use it for different propositions rather than developing a single argument. In May 2016 Zadek and Shapiro treated the case as evidence of Chief Justice Roberts’s judicial deference to Congress; in December 2016 Nowrasteh treated it as a limit on the federal government’s power to coerce states through funding conditions, in a segment where Zadek framed the surrounding doctrine as anti-commandeering and the 10th Amendment. The excerpts show no engagement between the two readings and no change in position by either guest.
What the sources do not cover
The excerpts never state what NFIB v. Sebelius held, which constitutional provision it turned on, who wrote the opinion, or when it was decided. Neither episode names the statute at issue beyond Zadek’s reference to Roberts’s doubts about whether the statute was constitutional and Nowrasteh’s reference to the Obamacare decision. The excerpts do not describe the individual mandate, the taxing power, or the Medicaid expansion, and they do not say what became of Garland’s nomination beyond Shapiro’s expectation that no hearing or vote would occur before the election.