Solum 2013 How NFIB v. Sebelius Affects the Constitutional Gestalt

2023-08-30: Solum How NFIB v. Sebelius Affects the Constitutional Gestalt 2013

Understandings of the Constitution are constrained by what is considered "reasonable" and what is considered "off-the-wall". There are transition periods in which portions of the set of "reasonable" understandings are reclassified as "off-the-wall" and previously "off-the-wall" understandings are reconsidered to be "reasonable".

• C. ConstitutionalGestalts
• "Constitutional gestalts are highly abstract representations of the content of constitutional doctrines, theories, and narratives. The content of the doctrine as a whole is the conjunction of the content of a multitude of particular constitutional rules. Similarly, we can construct constitutional narratives about the development of national legislative power. Finally, we can construct normative constitutional theories. Originalism is such a theory ...." (page 42)
• "A gestalt view of national legislative power relates generalizations about constitutional doctrine (e.g., the commerce power is virtually plenary and subject to rational basis scrutiny) to normative theories (e.g., the scope of national power should be decided by an elected body) and vindicating narratives (e.g., expansive Commerce Clause doctrine emerged from a conflict between an antidemocratic Supreme Court and a President and Congress vested with extraordinary constitutional authority by 'We the People')." (44)
• "The relevant objects of constitutional perception are multitudinous in number and complex in structure. Indeed, if the relevant constitutional data (bits of constitutional text, arguments by lawyers, reasons in opinions, pronouncements by nonjudicial officials, and so forth) are viewed one-by-one as particulars, the resulting mass of relevant inputs into the practice of constitutional argument is both vast and chaotic. Constitutional gestalts (supported by doctrinal theories, normative constitutional theories, and narratives) organize multitudinous, complex constitutional particulars into relatively simple pictures composed of a manageable set of elements." (47)
• D. Competing Constitutional Gestalts. Understandings of the [Dynamic] New Deal Settlement
• Gestalt One: "During the period covered by the extended New Deal Settlement, Commerce Clause doctrine was fairly complex. The constitutional gestalt was much simpler. The core idea of the gestalt was that Congress had plenary and virtually unlimited legislative power-subject, of course, to the limits imposed by the individual rights provisions of the Constitution." (49)
• Gestalt Two: "Returning to our oceanic metaphor, the alternative gestalt admits the existence of a great sea of federal power but insists that there are whole continents of exclusive state authority above the high tide line. Of course, the shape of the continents is largely the result of historical accident. From the perspective of the alternative constitutional gestalt, these seemingly arbitrary categorical distinctions make sense when viewed from a distance. They freeze the New Deal Settlement, as it exists here and now-this far, but no farther." (53) "Frozen New Deal Settlement" (54)
• "Justice Roberts's opinion in NFIB is curious. On the one hand, his discussion of the taxing power fits the dominant conventional gestalt. The individual mandate should be upheld because policy choices are reserved for democratic politics and not for the courts. Even if the ACA is best understood as a regulation and not a tax, the Court should adopt a saving construction that avoids the constitutional problem. On the other hand, Justice Roberts's discussion of the Commerce Clause fits the alternative gestalt. The individual mandate is beyond the Commerce Clause power because it is unprecedented, and the theories under which it is upheld imply that national legislative power is virtually unlimited. Justice Roberts looks at the picture and sees both a duck and a rabbit." (55)
• "... NFIB sets an important precedent and opens the door to future challenges of Congress's power to influence the states through conditional spending." (55)
• "The current state of the Court with respect to the constitutional gestalt could hardly be more evenly divided. Four and one-half Justices adhere to the conventional gestalt; four and one-half affirm the alternative view of the big picture. Half the Court endorses the dynamic reading of the New Deal Settlement; the other half sees the New Deal Settlement as frozen. The Court as an institution and Justice Roberts as an individual are caught in the exact moment of a constitutional gestalt shift-seeing the rabbit at one moment and the duck in the next. But this moment cannot last." (56)
• "The plaintiffs argued that the mandate was unprecedented, the New Deal cases distinguishable, and the categorical distinctions in the New Federalism cases ("economic activity") were controlling. The United States argued that the mandate had precedents, the spirit of the New Deal cases controlled, and the New Federalism cases (United States v. Lopez; United States v. Morrison; Printz v. United States; New York v. United States; Pennhurst State School and Hospital v. Halderman) were distinguishable." (57)
• "A shift in the constitutional gestalt requires more than arguments in constitutional litigation or theories propounded in law review articles, although they may play a role. A shift in the gestalt can only occur with supporting developments in constitutional politics off and on the Court. The current state of constitutional equipoise is a product of the transitory composition of the current Court and a divided government reflecting deep political fissures." (58)