The Lopsided Giant

By Christopher Robertson

Professor Elhauge‘s provocative little book, Obamacare on Trial, has many of us rethinking and revisiting the NFIB v. Sebelius decision, and I had a chance to attend the nice book talk featuring Professor Elhauge and several interlocutors last week.

Chief Justice Roberts’ opinion in the case is not prominently textualist (since contemporaneous dictionary definitions of “regulate” are unhelpful to him, as Elhauge shows) nor historicist (since the founders themselves imposed healthcare insurance purchase mandates, as Elhauge also shows).  Instead, Chief Justice Roberts repeatedly relies on a slippery slope style of argument (or a reductio ad absurdum), not unlike those I heard from Fox TV commentators and friends on Facebook in the months prior to the decision.  Below the fold, I suggest that this form of argument is incoherent given the larger holding of the case.

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