National healthcare and American constitutional culture

Harvard Journal of Law and Public Policy

Volumn 35, Issue 1, 2012, Pages 131-152

  Marshall, William P ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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EID: 84859868773     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (111)

1. Pub. L. No. 111-148, 124 Stat. 119 (2010).
2. For an overview of Americans' immediate reactions to the passage of PPACA, see Lydia Saad, By Slim Margin, Americans Support Healthcare Bill's Passage, GALLUP. Mar. 23, 2010, http://www.gallup. com/poll/126929/slim- marginamericans-support-healthcare-bill-passage.aspx.
3. See generally Jeremy Rabkin, American Exceptionalism and the Healthcare Reform Debate, 35 HARV. J. L. & PUB. POL'Y 153 (2012).
4. See Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882, 895 (E. D. Mich. 2010) (upholding the constitutionality of the individual mandate)
5. aff'd 651 F.3d 529 (6th Cir. 2011).
6. See generally NANCY J. ALTMAN, THE BATTLE FOR SOCIAL SECURITY: FROM FDR'S VISION TO BUSH'S GAMBLE (2005).
7. Social Security Act of 1935, ch. 531, 49 Stat. 620 (1935).
8. U. S. CONST. amend X.
9. 301 U. S. 619 (1937).
10. 301 U. S. 548 (1937).
11. U. S. CONST. art. I, § 8, cl. 1. ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States....").
12. See Steward Mach., 301 U. S. at 598;
13. see also Helvering, 301 U. S. at 645-46. In a companion case also decided the same day
14. Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 514 (1937)
15. See Steward Mach., 301. U. S. at 592;
16. Helvering, 301 U. S. at 639-40.
17. THE FEDERALIST No. 41 (James Madison).
18. See ALEXANDER HAMILTON, REPORT ON MANUFACTURES 41 (Dec. 5, 1791) (written in his position as Secretary of the Treasury).
19. See, e.g., Helvering, 301 U. S. at 640.
20. See United States v. Butler, 297 U. S. 1, 66 (1936).
21. Helvering, 301 U. S. at 640.
22. See, e.g., Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 N. Y. U. J. L. & LIBERTY 581, 583-84 (2010).
23. Troy J. Oechsner & Magda Schaler-Haynes, Keeping it Simple: Health Plan Benefit Standardization and Regulatory Choice Under the Affordable Care Act, 74 ALB. L. REV. 241, 283 (2010).
24. Compare Florida v. HHS, 648 F.3d 1235, 1327-28 (11th Cir. 2011) (holding that the individual mandate is severable from the rest of the Act)
25. with Florida v. HHS, 780 F. Supp. 201 1256, 1305 (N. D. Fla. 2011)
26. aff'd in part, rev'd in part, 648 F.3d 1235 (11th Cir. 2011) (holding that the individual mandate is not severable).
27. See generally Roe v. Wade, 410 US 113 (1973) (holding that there is a constitutional right for a woman to have an abortion). The government, of course, presumably could choose to refrain from paying for certain types of medical treatments if it so decided.
28. See Harris v. McRae, 448 U. S. 297 (1980) (holding that there is no right to a state subsidized abortion).
29. See U. S. CONST. art IV, § 4, cl. 1 ("The United States shall guarantee to every State in this Union a Republican Form of Government.... "). A parallel argument could be advanced that the federal government similarly requires that the United States and the States must have a laissez-faire based economy. The problems with such a theory, of course, are legion. First, unlike the Guarantee Clause, there is no textual basis for such a claim. Second, the Guarantee Clause imposes limits only upon the States and not the federal government and, indeed, actually empowers the federal government to act against the States. Third, the Guarantee Clause has not proven to have much content. It does not prevent States from using direct democracy mechanisms such as initiatives and referenda, rather than legislatures, to enact laws
30. see Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118(1912), and has not even been interpreted to require that state legislative bodies be fairly apportioned.
31. See Colegrove v. Green, 328 U. S. 549 (1946).
32. Steward Machine Co. v. Davis, 301 U. S. 548, 603 (1937) (McReynolds, J., dissenting) (internal quotation marks omitted).
33. See, e.g., Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia and the True Nature of Constitutional Culture, 93 GO. L. J. 897, 899 (2005) (defining constitutional culture as "a larger community-wide discourse that includes judicial and nonjudicial actors, a mixture of legal norms and political actions, and a wide range of interpretive expression");
34. Jason Mazzone, The Creation of a Constitutional Culture, 40 TULSA L. REV 671, 672 (2005) (describing constitutional culture as the relationship between the people and the Constitution, that the people recognize the Constitution's authority and reach, that it was created by the people, and that it is not set in stone but can be changed or revoked by the people);
35. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: the Case of the de facto ERA, 94 CAL. L. REV. 1323, 1349 (2006) (recognizing the flexibility that the Constitution provides, constitutional culture is what allows new understandings to be created and upheld, so long as these understandings take a form that "officials can enforce and the public will recognize as the Constitution").
36. 505 U. S. 1003 (1992).
37. For a discussion of regulatory takings, see Lingle v. Chevron U. S. A. Inc., 544 U. S. 528 (2005).
38. Lucas, 505 U. S. at 1028.
39. For the argument that Justice Scalia's reliance on constitutional culture is inconsistent with his originalist methodology see, for example, William W. Fisher III, The Trouble with Lucas, 45 STAN. L. REV. 1393, 1399-1400 (1993) (arguing that Justice Scalia's use of the term "constitutional culture" in Lucas might suggest that "the relevant social contract is not the one supposedly entered into by the persons who ratified the original Constitution and its first set of amendments, but rather the one entered into by the government and the current citizens of the United States when the latter first became active members of the polity");
40. Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 81 (1992) (Justice Scalia's use of the phrase "constitutional culture" in Lucas might indicate that "[t]he culture and customs of the people have become his interpretive guide and apparently now 'tradition is a living thing' for him as well");
41. William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 808 (1995) ("Justice Scalia's approach in Lucas is at odds with his announced commitment to a doctrine of originalism and his explanation of what originalism means.").
42. 505 U. S. 833 (1992). Justice Scalia's opinion in Lucas and Chief Justice Rehnquist's in Casey are the only instances, according to my research, where a Supreme Court Justice has used the actual term "constitutional culture." The Justices, have, of course, used such parallel terms as constitutional tradition in a variety of cases.
43. See, e.g., Grutter v. Bollinger, 539 U. S. 306, 329 (2003) ("We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. ");
44. Printz v. United States, 521 U. S. 898, 918 (1997) ("Even assuming [that certain laws] represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative than the statute before us of a constitutional tradition that lends meaning to the text.");
45. Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982) ("We consider this immunity a functionally mandated incident of the President-s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.").
46. Casey, 505 U. S. at 957 (Rehnquist, C. J., concurring in part and dissenting in part).
47. 410 U. S. 113 (1973).
48. Casey, 505 U. S. at 957 (Rehnquist, C. J., concurring in part and dissenting in part).
49. Neomi Rao, American Dignity and Healthcare Reform, 35 HARV. J. L. & PUB. POL'Y 171 (2012).
50. For scholarly works addressing the meaning of "constitutional culture", see, for example, Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV. 549, 592 (2009) (defining constitutional culture as "what ordinary citizens and legal and political elites believe the Constitution means and who they believe has authority to make claims on the Constitution");
51. J. M. Balkin, What is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966, 1978 (1992) ("[T]he way that the courts, Congress, and the executive interact with each other, and the way that law is understood, promulgated, argued about, experienced, and assimilated.").
52. Helvering v. Davis, 301 U. S. 619, 641 (1937).
53. See generally COURTNEY MCSWAIN & RYAN DAVIS, INST. FOR HIGHER EDUC. POLICY, COLLEGE ACCESS FOR THE WORKING POOR: OVERCOMING BURDENS TO SUCCEED IN HIGHER EDUCATION (2007), available at http://www.ihep.org/assets/files/ publications/a-f/CollegeAccessWorkingPoor.pdf.
54. 317 U. S. 111 (1942).
55. For one criticism, see LIBERTY LEGAL FOUNDATION, What's Wrong with Wickard?, http://www.libertylegalfoundation. net/574/whats-wrong-with-wickard/.
56. See Gonzales v. Raich, 545 U. S. 1, 19 (2005).
57. Chrystia Freeland, The Rise of the New Global Elite, ATLANTIC, Jan./Feb. 2011, at 44.
58. See Citizens United v. FEC, 130 S. Ct. 876, 949 (2010) (Stevens, J., dissenting) ("It was assumed that [corporations] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.") (citation and internal quotation marks omitted).
59. JAMES D. COX & THOMAS LEE HAZEN, TREATISE ON THE LAW OF CORPORATIONS § 2:3 (3d ed. 2010) (discussing the early history of American corporations).
60. See Jonathan R. Macey, An Economic Analysis of the Various Rationales for Making Shareholders the Exclusive Beneficiaries of Corporate Fiduciary Duties, 21 STETSON L. REV. 23, 23 (1991).
61. Andrew G. Keeler, Regulatory Objectives and Enforcement Behavior, ENVTL. RES. ECON., July 2005, at 73, 73-85.
62. See Dana C. Nicholas, Note, China's Labor Enforcement Crisis: International Intervention and Corporate Social Responsibility, 11 SCHOLAR 155, 156-58 (2009) (arguing that without regulation or enforcement, economic pressure for high output at low cost can be an irresistible inducement to using child labor).
63. See UPTON SINCLAIR, THE JUNGLE (1906). Corporate actions in pursuit of profit can, and have, endangered the national interest in others ways. Abuses in the financial markets causing serious economic crises are almost too numerous to mention.
64. See generally ANDREW ROSS SORKIN, TOO BIG TO FAIL: THE INSIDE STORY OF HOW WALL STREET AND WASHINGTON FOUGHT TO SAVE THE FINANCIAL SYSTEM FROM CRISIS-AND THEMSELVES (2009);
65. RICHARD A. POSNER, A FAILURE OF CAPITALISM: THE CRISIS OF '08 AND THE DESCENT INTO DEPRESSION (2009).
66. Michael Winerip, Canton's Biggest Employer is Out of Step, and That's Fine With Him, N. Y. TIMES, Dec. 2, 1996, at B8.
67. Helvering v. Davis, 301 U. S. 619, 641 (1937).
68. Cf. Gonzalez v. Raich, 545 U. S. 1, 19 (2005).
69. See Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882, 893-94 (E. D. Mich. 2010) ("The decision whether to purchase insurance or to attempt to pay for health care out of pocket... [has] clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.... [C]hoosing to forgo insurance... collectively shift[s] billions of dollars, $43 billion in 2008, onto other market participants.")
70. aff'd 651 F.3d 529 (6th Cir. 2011).
71. See 42 U. S. C. § 1395 dd (2003).
72. See, e.g., U. S. CONST. amend I.
73. U. S. v. Morrison, 529 U. S. 598, 616 n. 7 (2000) ("The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties'")
74. (quoting Atascadero State Hosp. v. Scanlon, 473 U. S. 234, 242 (1985) (internal quotations omitted))).
75. See Wooley v. Maynard, 430 U. S. 705 (1977) (upholding a First Amendment challenge to New Hampshire's mandatory display of the state motto on its license plates).
76. See, e.g., William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B. U. L. REV. 505, 506 (2008);
77. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L. J. 2446, 2470 (2006).
78. See Max Farrand, The Federal Constitution and the Defects of the Confederation, 2 AM. POL. SCI. REV. 532, 532 (1908) ("That the Constitution was framed because of defects in the Articles of Confederation is universally accepted....");
79. see also Robert L. Stern, That Commerce Which Concerns More States Than One, 47 HARV. L. REV. 1335, 1337 (1934) ("The Constitutional Convention was called because the Articles of Confederation had not given the Federal Government any power to regulate commerce.").
80. 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON 321 (J. B. Lippincott & Co., 1865) (1787) (As James Madison observed in discussing the shortcomings of decentralized regulation of commerce, "[t]he practice of many States in restricting the commercial intercourse with other States... tends to beget retaliating regulations... destructive of the general harmony.").
81. See William P. Marshall, American Political Culture and the Failures of Process Federalism, 22 HARV. J. L & PUB. POL'Y 139, 145 (1998).
82. David A. Dana, Public Interest and Private Lawyers: Toward a Normative Evaluation of Parens Patriae Litigation by Contingency Fee, 51 DEPAUL L. REV. 315, 317-19 (2001).
83. See Karen Eggleston, Risk Selection and Optimal Health Insurance-Provider Payment Systems, J. RISK INS., June 2000, at 173, 174.
84. See Middle of the Class, ECONOMIST, July 14, 2005, at 9-13 (noting "[a] decline in social mobility would run counter to Americans' deepest beliefs about their country");
85. see also Ever higher society, ever harder to ascend, ECONOMIST, Jan. 1, 2005, at 22-24 (discussing belief in American meritocracy).
86. See Ever higher society, supra note 74, at 22. Consistent with this principle the Constitution provides that "No Title of Nobility shall be granted by the United States...."
87. U. S. CONST. art 1., § 9.
88. See JULIA B. ISAACS, ECON. MOBILITY PROJECT, ECONOMIC MOBILITY OF FAMILIES ACROSS GENERATIONS 5 (2007).
89. See GREGORY ACS & SETH ZIMMERMAN, LIKE WATCHING GRASS GROW? ASSESSING CHANGES IN U. S. INTRAGENERATIONAL ECONOMIC MOBILITY OVER THE PAST TWO DECADES 6 (2008).
90. Bob Herbert, A Recovery's Long Odds, N. Y. TIMES, Sept. 14, 2010, at A29;
91. see also Nicholas D. Kristof, Taxes and Billionaires, N. Y. TIMES, July 7, 2011, at A23 (noting that the top one percent of Americans have more collective wealth than the bottom ninety percent of Americans).
92. "[The] American Dream... is showing signs of wear, with both public perceptions and concrete data suggesting that the nation is a less mobile society than once believed." ISABEL V. SAWHILL & JOHN E. MORTON, ECON. MOBILITY PROJECT, ECONOMIC MOBILITY: IS THE AMERICAN DREAM ALIVE AND WELL? 13 (2007).
93. Fifty-nine percent of Americans today think that it will be harder for their children to climb the income ladder, compared with only forty-six percent in 2009. Letter from The Mellman Group, Inc. & Public Opinion Strategies to the Economic Mobility Project (May 17, 2011), http://www.economicmobility.org/ poll2011/Mellman-Poll-Document.pdf.
94. David Hyman & Mark Hall, Two Cheers for Employment-Based Health Insurance, 2 YALE J. HEALTH POL'Y L. & ETHICS 23, 28 (2001);
95. see also Ezra Klein, More Americans Fear Losing Their Health Insurance Than Being in a Terrorist Attack, AMERICAN PROSPECT, May 21, 2008, available at http://www.alternet.org/health/85947.
96. Myung Ki et al., Health selection operating between classes and across employment statuses, J. EPIDEMIOLOGY CMTY HEALTH, Sept. 4, 2010, available at http://jech.bmj.com/content/early/2010/09/01/jech.2009.107995.full.pdf (demonstrating that health is a predictor for social mobility when leaving and entering employment).
97. For a clear illustration on the relationship between poor health and inequality, see Alexander Hertel-Fernandez, The Corrosive Effects of Inequality on Health, ECON. POL'Y INST. (Jan. 19, 2010), http://www.epi.org/economic- snapshots/entry/snapshot-20100119/;
98. see also Myung Ki, Health Selection and Health Inequalities (2009) (unpublished Ph. D. dissertation, University College London), available at eprints.ucl.ac.uk/18913/18913.pdf.
99. For the seminal report demonstrating the relationship between health inequalities and class, see Peter Townsend & Nick Davidson, Inequalities in Health: The Black Report (1982).
100. See, e.g., Melissa B. Jacoby & Mirya Holman, Managing Medical Bills on the Brink of Bankruptcy, 10 YALE. J. HEALTH POL'Y & ETH. 239, 261-62, 286 (2010) (reporting on range of estimates of medical-related bankruptcy, including the recent estimate of sixty-two percent, and critiquing alternative method of measurement);
101. Melissa B. Jacoby & Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative Account of Medical-Related Financial Distress, 100 NW. U. L. REV. 535, 551 (2006) (using 2001 data, reporting ways to estimate medical-related bankruptcy as a percentage of all personal bankruptcy filers and finding that medical-related bankruptcy accounts for up to sixty-three percent);
102. Melissa Jacoby et al., Rethinking the Debates over Health Care Financing: Evidence from the Bankruptcy Courts, 76 N. Y. U. L. REV. 375, 377 (2001) (showing that in 1999 "[n]early half of all bankruptcies involved a medical problem").
103. See GREGORY ACS & SETH ZIMMERMAN, ECON. MOBILITY PROJECT, SUMMARY OF KEY FINDINGS: U. S. INTRAGENERATIONAL ECONOMIC MOBILITY FROM 1984 TO 2004: TRENDS AND IMPLICATIONS (2008);
104. see also Steven A. Haas, Health Selection and the Process of Social Stratification: The Effect of Childhood Health on Socioeconomic Attainment, 47 J. OF HEALTH & SOC. BEHAVIOR 339-54 (2006);
105. CHILDREN'S DEFENSE FUND, STATE OF AMERICA'S CHILDREN 2010 REPORT, at xiii (2010), available at http://www.childrensdefense.org/child-research-data- publications/data/state-of-americas-children-2010-report.html +
106. Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-5, 2000e-16 (2009).
107. But see MICHAEL NOVAK, THE SPIRIT OF DEMOCRATIC CAPITALISM 123-25 (1982).
108. David A. Strauss, The Illusory Distinction Between Equality of Opportunity and Equality of Result, 34 WM. & MARY L. REV. 171, 173 (1992) ("The call for 'equality of opportunity, not equality of result', is sometimes offered as a reason for opposing welfare state measures.").
109. See Karen Davis, Universal Coverage in the United States: Lessons and Experience of the 20th Century, 78 J. URBAN HEALTH 46, 47 (2001).
110. Cf. Michael Isikoff, White House used Mitt Romney health-care law as blueprint for federal law, MSNBC. COM (Oct. 11, 2011, 6:05 AM), http://www.msnbc.msn. com/id/44854320/ns/politics-decision-2012/t/white-house- used-mitt-romney-health-care-lawblueprint-federal-law/#.TrRCnnLdP48.
111. Pat Wechsler, Americans Without Health Insurance Rise to 52 Million on Job Loss, Expense, BLOOMBERG (Mar. 16, 2011), http://www.bloomberg.com/news/ 2011-03-16/americans-without-health-insurance-rose-to-52-million-on-job-loss- expense.html.