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NFIB V. Sebelius and the Individualization of the State Action Doctrine

Harvard Law Review, February 2014 | Go to article overview

NFIB V. Sebelius and the Individualization of the State Action Doctrine


On June 28, 2012, the Supreme Court handed down its decision in National Federation of Independent Business v. Sebelius (1) (NFIB), upholding President Barack Obama's signature legislative achievement, the Patient Protection and Affordable Care Act (2) (ACA or Act). For months, the public, jurists, and scholars alike had debated the constitutionality of the Act's "individual mandate," a provision requiring anyone who failed to purchase health insurance to make a payment to the federal government. (3) NFIB ended that debate, holding that the mandate exceeded Congress's authority to regulate commerce but not its authority to tax. The Court held that the Commerce Clause authorized the regulation of only commercial activity and that, by assessing a payment on individuals' decisions not to purchase health insurance, the mandate regulated inactivity. By contrast, the Taxing Clause authorized the regulation of inactivity, and it was possible to construe the mandate as a tax. Thus, while the mandate fell outside of Congress's commerce power, it could survive as a valid exercise of the taxing power.

NFIB's distinction between activity and inactivity--what this Note calls the decision's "individual action doctrine" (4)--mirrors one of the Court's most vexing doctrinal constructions: the state action doctrine. That doctrine holds that only governmental actors can violate the Constitution and, thus, that the state must act before a constitutional violation will lie.

Both the state action and individual action doctrines share an analogous analytic framework, and they serve analogous functions. The doctrines police a boundary between the citizen and the state by limiting federal power to contexts either in which the state has acted or in which individuals have acted. In doing so, the doctrines construct a realm of individual autonomy free from certain types of governmental intrusion. NFIB transposes and grafts onto the Commerce Clause many of the same commitments that drive the Court's state action jurisprudence, including limitations on the manner in which Congress can regulate nominally private decisionmaking.

Importantly, however, neither doctrine guards private activity from governmental regulation completely. NFIB permitted both state regulation and federal regulation under the Taxing Clause, limiting only the commerce power. By limiting federal power under the Fourteenth Amendment, the state action cases similarly displaced regulatory power to the states or to other sources of constitutional authority, most prominently the Commerce Clause.

The doctrines serve in this way to allocate decisionmaking power between various governmental institutions. They are a response to the "hydraulic pressure inherent within each of the separate Branches" (5) to accomplish social and economic objectives. They manage this pressure by cutting off certain sources of power and reallocating their exercise elsewhere. This view of the doctrines, and of the reallocation of power that they produce, is reminiscent of a concept in physics that energy in a system is never created or destroyed but only changes form and location. This "first law of thermodynamics" is true of the American constitutional system as well: the power to govern individual behavior is never extinguished but only shifted between various actors in society--the courts, political branches, states, and individuals.

The individual action and state action doctrines are emblematic of this constitutional phenomenon. This Note seeks to connect the doctrines and to identify their function. Part I introduces the state action doctrine and its analytic structure. Two points inform the analysis of NFIB's individual action requirement that follows: First, the state action doctrine assumes and asserts a distinction between private and public acts. Second, the doctrine responds to governmental efforts to regulate private acts, reallocating regulatory power by cutting off those efforts under certain sources of authority.

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