NFIB v. Sebelius

In 2012, Bancroft represented 26 States in their historic Supreme Court challenge to the Patient Protection & Affordable Care Act. After ordering separate rounds of briefing on each of the four issues presented—the constitutionality of the individual mandate, the constitutionality of the Medicaid expansion, the applicability of the Anti-Injunction Act, and the severability of any unconstitutional provisions—the Supreme Court heard a virtually unprecedented six hours of oral argument stretching over the course of three days. Bancroft partner Paul D. Clement presented argument on the individual mandate, severability, and Medicaid issues. On June 28, 2012, the Court handed down its decision. The Court unanimously agreed that the Anti-Injunction Act did not bar the suit. A majority of the Court held the individual mandate to purchase insurance unconstitutional under the Commerce Clause and the Necessary and Proper Clause, but a different majority held that the law could be upheld under the taxing power if construed as a tax on individuals who do not purchase insurance, instead of a mandate to purchase insurance enforced by a penalty. A seven-Justice majority also held the Medicaid expansion unconstitutional under the spending power, concluding that the federal government may not require States to expand their programs as a condition of continued participation in Medicaid. Four Justices authored a joint dissent in which they agreed with the States that all challenged provisions were unconstitutional and could not be severed, thus requiring total invalidation of the ACA.

Paul D. Clement and Erin E. Murphy worked on the case.

Supreme Court Opinion

Supreme Court Oral Argument Audio
Monday, 03/26/2012 (Anti-Injunction Act)
Tuesday, 03/27/2012 (Mandate)
Wednesday, 03/28/2012 – AM (Severability)
Wednesday, 03/28/2012 – PM (Medicaid)

Merits Briefs
Brief for State Petitioners on Severability 
Brief of State Petitioners on Medicaid

Brief for State Petitioners on the Anti-Injunction Act
Brief for State Respondents on Minimum Coverage Provision
Reply Brief for State Petitioners on the Anti-Injunction Act
Reply Brief for State Petitioners on Medicaid
Reply Brief for State Petitioners on Severability

Certiorari Briefs
Reply in Support of Petition
States’ Reply Brief
States’ Response Brief

Eleventh Circuit
CA11 Opinion

Health-Care in the News

Adam Liptak, Common Ground for Legal Adversaries on Health Care, New York Times (Sept. 29, 2011)
Robert Barnes, Supreme Court Term will Include Cases Highlighting Extent of Federal Power, Washington Post (Oct. 1, 2011)
Kevin Sack, Lawyer Opposing Health Law is Familiar Face to the Justices, New York Times (Oct. 26, 2011)
Adam Liptak, Justices to Hear Health Care Case as Race Heats Up, New York Times (Nov. 14, 2011)
Mark Sherman, Paul Clement, Former Bush Solicitor General, Arguing at Supreme Court against Obama Policies, Huffington Post (March 12, 2012)
Adam Liptak, In Health Care Case, Lawyers Train for 3-Day Marathon, New York Times (March 25, 2012)
Bloomberg Law & SCOTUSBlog Health Care Panel, C-SPAN (Feb. 16, 2012)