Abstract

The only part of the Patient Protection and Affordable Care Act (hereafter, ‘the ACA’) struck down in National Federation of Independent Business (NFIB) et al. v. Sebelius, Secretary of Health and Human Services, et al. was a provision expanding Medicaid. We will argue that this was a mistake; the provision should not have been struck down. We’ll do this by identifying a test that C.J. Roberts used to justify his view that this provision was unconstitutional. We’ll defend that test against some objections raised by J. Ginsburg. We’ll then go on to argue that, properly applied, that test establishes the constitutionality of the Medicaid provision.