Popular constitutionalism and the underenforcement problem: The case of the national healthcare law

Law and Contemporary Problems

Volumn 75, Issue 3, 2012, Pages 157-202

  Young, Ernest A ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84861846040     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (227)

1. See, e.g., RICHARD H. FALLON, IMPLEMENTING THE CONSTITUTION (2001).
2. Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 26-28 (2000).
3. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-42 (1985).
4. See H. Jefferson Powell, Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law, 86 WASH. L. REV. 217, 234 (2011) ("There is. .. a gap between what the direct command of the Constitution literally requires. .. and what the Court deems appropriate or even essential in the enforcement of those requirements. It is the existence of this gap between constitutional command and judicial rule, in a sense, that defines constitutional doctrine.").
5. Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1741-48 (2005).
6. See, e.g., United States v. Stevens, 130 S. Ct. 1577, 1593 (2010) (Alito, J., dissenting) ("Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others.").
7. One may also think of warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), in this way. See, e.g., Oregon v. Elstad, 470 U.S. 298, 306 (1985) ("The Miranda exclusionary rule. .. serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation.").
8. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213 (1978).
9. Courts are not the only institutions that create a gap between the meaning of the Constitution and their enforcement of it. For instance, the War Powers Resolution purports to be an interpretation by Congress of the allocation of war powers between Congress and the President. But that statute arguably both overenforces some limits on the President's authority (for example, by applying to Presidential actions that do not amount to an act of war) and underenforces others (by allowing the President to initiate hostilities and continue them for sixty days without congressional approval). Presumably these gaps have their origins in certain institutional limitations of the Congress in dealing with crises that give rise to military action.
10. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26 and 42 U.S.C.).
11. Laurence Tribe, On Health Care, Justice Will Prevail, N.Y. TIMES, Feb. 7, 2011, at A27. Much of the present author's knowledge of constitutional law, such as it is, consists in what he learned from Professor Tribe in law school.
12. Erwin Chemerinsky, Political Ideology and Constitutional Decision-Making: The Coming Example of the Affordable Care Act, 75 LAW & CONTEMP. PROBS., no. 3, 2012 at 3.
13. See, e.g., Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 YALE L.J. ONLINE 1 (2011), http://yalelawjournal.org/2011/ 04/26/koppelman.html.
14. Peter J. Smith, Federalism, Lochner, and the Individual Mandate, 91 B.U. L. REV. 1723 (2011).
15. See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 392-400 (1937) (upholding state minimum wage legislation against a freedom of contract challenge); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 34-46 (1937) (upholding provisions of the National Labor Relations Act against a Commerce Clause challenge).
16. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1232 (1994) ("The post-New Deal conception of the national government has not changed one iota, nor even been a serious subject of discussion, since the Revolution of 1937.").
17. See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (striking down a New York law limiting the hours of bakers on freedom of contract grounds); Allgeyer v. Louisiana, 165 U.S. 578 (1897) (striking down a Louisiana law regulating insurance on freedom of contract grounds); United States v. E.C. Knight Co., 156 U.S. 1 (1895) (limiting Congress's Commerce Clause authority to matters that directly affected buying and selling across state lines).
18. See Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding a law providing for "separate but equal" accommodations for white and black persons on trains).
19. Engel v. Vitale, 370 U.S. 421 (1962), did not strike down the New York Regent's Prayer until 1962.
20. See, e.g., Schenck v. United States, 249 U.S. 47 (1919) (upholding Schenck's conviction under the Espionage Act of 1917 for criticizing the military draft, notwithstanding his First Amendment challenge).
21. See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 5-12 (2009) (documenting the shift during the New Deal period in public expectations of government)
22. Cf. Randy Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 N.Y.U. J. L. & LIBERTY 581, 583 (2010) ("There are three ways to analyze whether a law is constitutional or not. Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Are there five votes for a particular result? Unless we are clear about which sense of 'unconstitutional' we are using, we are likely to talk past each other.").
23. 26 U.S.C. § 5000A(b)(1) (West 2011).
24. U.S. CONST. art. I, § 8.
25. 22 U.S. (9 Wheat.) 1, 195 (1824).
26. United States v. E.C. Knight, 156 U.S. 1, 12 (1895) ("Commerce succeeds to manufacture, and is not a part of it.").
27. See, e.g., ALPHEUS THOMAS MASON, The Role of the Court, in FEDERALISM: INFINITE VARIETY IN THEORY AND PRACTICE 8, 24-25 (Valerie A. Earle ed., 1968).
28. See also ANTHONY J. BELLIA, JR., FEDERALISM 183 (2011) ("The dual federalism paradigm understands federal and state governments to operate in different spheres of authority.").
29. Compare, e.g., ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 175 (1960) (ascribing the switch in the Court's stance to a combination of FDR's sweeping 1936 electoral victory, the outbreak of a new wave of labor disputes, and the court-packing plan).
30. BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 6 (1988) (arguing that the conventional account overlooks the critical role of doctrinal developments, internal to the law, that made the pre-1937 jurisprudence unsustainable)
31. See Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1, 17 (1950) (observing that, by 1950, the "entire system of constitutional interpretation" embodied in dual federalism lay "in ruins").
32. For a survey of alternate federalism models that remain viable after the demise of dual federalism, see Ernest A. Young, The Puzzling Persistence of Dual Federalism, in NOMOS (James Fleming & Jacob Levy eds.) (forthcoming 2012).
33. See United States v. Morrison, 529 U.S. 598, 613 (2000) ("[T]hus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.").
34. Wickard v. Filburn, 317 U.S. 111, 125-29 (1942).
35. United States v. Lopez, 514 U.S. 549, 557 (1995).
36. 545 U.S. 1, 34-42 (2005) (Scalia, J., concurring in the judgment).
37. 17 U.S. (4 Wheat.) 316, 421 (1819). The Court did suggest some willingness to tweak the McCulloch standard in its most recent "necessary and proper" case, United States v. Comstock, 130 S. Ct. 1949 (2010). That case upheld the federal civil commitment statute for mentally ill, sexually dangerous federal prisoners as necessary and proper to the enforcement of federal criminal laws enacted pursuant to Congress's various enumerated powers. The majority's careful consideration of the commitment provision's "necessity," however, was hardly the rubber stamp that we have come to expect under McCulloch. Moreover, Justice Kennedy-who might as well have a "5" tattooed on his forehead in federalism cases-wrote separately to insist that the McCulloch standard should not be equated with the very lenient form of "rational basis" review applied in privacy cases not involving fundamental rights.
38. Although I have criticized aspects of this doctrine elsewhere, see, e.g., Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v Raich, 2005 SUP. CT. REV. 1, 21-37.
39. I have generally praised the notion that the national and state governments exercise a largely concurrent jurisdiction, see Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139 (2001). The point is simply that current doctrine limits national power far less strictly than dual federalism did.
40. 514 U.S. 549 (1995).
41. 529 U.S. 598 (2000).
42. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the Controlled Substances Act even as applied to medicinal use of homegrown marijuana).
43. See, e.g., Robert D. Cooter & Neil Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 135 (2010) (suggesting that Lopez and Morrison were rightly decided but that the ACA is more defensible than the statutes struck down in those cases).
44. See, e.g., Lopez, 514 U.S. at 604 (Souter, J., dissenting) ("The modern respect for the competence and primacy of Congress in matters affecting commerce developed only after one of this Court's most chastening experiences, when it perforce repudiated an earlier and untenably expansive conception of judicial review in derogation of congressional commerce power.").
45. Jeffrey Young, Kyl: Health bill a 'stunning assault on liberty', THE HILL, Sept. 22, 2009, http://thehill.com/blogs/blog-briefing-room/news/59761-kyl-health-bill-a-stunning-assault-on-liberty-.
46. Daniel Fisher, Obamacare Judges Must Answer The "Broccoli Question", FORBES, Nov. 18, 2011, http://www.forbes.com/sites/danielfisher/2011/11/18/obamacare-judges-must-answer-the-broccoliquestion/.
47. Your humble author was once nearly thrown out of a Federalist Society gathering for allowing that Commerce Clause doctrine might not prevent Congress from ordering all Americans to eat broccoli, suggesting instead that any constitutional challenge to such a law would better rely on substantive due process, and admitting that current doctrine might not support that challenge either
48. For a similar conclusion, from someone that no one would dare throw out of a Federalist Society gathering, see The Constitutionality of the Affordable Care Act: Hearing Before the S. Com. on the Judiciary, 112th Cong. (2011) (statement of Charles Fried, Professor of Law, Harvard Law School).
49. Consider, for example, a legislative proposal in South Dakota to mandate that individuals purchase a firearm. The proposal is meant to dramatize the illegitimacy of forcing individuals to purchase health insurance, and the proponents appear to see no critical difference in the fact that this proposal comes from a state government, not from Congress.
50. See South Dakota Lawmakers Propose Mandating Gun Ownership-To Make Point About Health Law, FOX NEWS (Feb. 1, 2011), http://www.foxnews.com/politics/2011/02/01/sd-lawmakers-propose-mandating-gun-ownership-makepoint-health-law/.
51. Not everyone shares this view, however. For example, one of the leading articulations of Tea Party objections to the individual mandate distinguishes sharply between the ACA's mandate and governmental mandates requiring individuals to buy auto insurance: But is mandatory car insurance really analogous to mandatory health insurance under Obamacare? No, for this simple reason: the sovereign mandating car insurance is the state, not federal, government. And. .. the principle of limited government is a principle that applies to the federal government, not the state.
52. ELIZABETH PRICE FOLEY, THE TEA PARTY: THREE PRINCIPLES, 37 (2012). Professor Foley goes on to locate auto insurance mandates within the general police power, which she sees as one of the "numerous and indefinite" powers that Madison held to be reserved to the states.
53. For an acknowledgement by one of the ACA's defenders that at some point government interference with individual health choices would run afoul of individual rights, see Michael Dorf, The Federalism Objection to the Individual Mandate, DORF ON LAW (Nov. 3, 2009), http://www.dorfonlaw.org/2009/11/federalism-objection-to-individual.html (recognizing that a "requirement to see a doctor would come close, in my view, to violating the common law right- assumed to be a constitutional right in the Cruzan case-to refuse medical treatment," and that "an order to exercise does appear to go too far"). The important point for my purposes is that these examples differ from the individual mandate in degree, but not in kind.
54. See, e.g., Brief for Private Respondents at 32-33, Department of Health and Human Services v. State of Florida et. al. (No. 11-398) (U.S. Feb. 6, 2012).
55. See, e.g., Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Individual Mandate, 75 LAW & CONTEMP. PROBS., no. 3, 2012, at 43 (criticizing the distinction between inactivity and activity as "formal" and "arbitrary")
56. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 212 (1989) (Blackmun, J., dissenting) (decrying "attempts to draw a sharp and rigid line between action and inaction" as "formalistic reasoning [that] has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment").
57. THE BHAGAVAD GITA AS IT IS, CHAPTER 4, TEXT 18, http://www.asitis.com/4/18.html (last visited Nov. 6, 2011) ("One who sees inaction in action, and action in inaction, is intelligent among men.").
58. Compare, e.g., United States v. Morrison, 529 U.S. 598, 613 (2000) (holding that gendermotivated violence is not a commercial activity and therefore not regulable under the Commerce Clause), with Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1292-93 (11th Cir. 2011) ("Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause.").
59. 262 U.S. 390, 399 (1923).
60. 198 U.S. 45 (1905) (striking down a New York law regulating the hours of bakers on the ground that it unreasonably restricted the bakers' freedom to contract).
61. See, e.g., DAVID E. BERNSTEIN, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM (2011).
62. See, e.g., Eastern Enters. v. Apfel, 524 U.S. 498 (1998) (debating whether economic substantive due process barred retroactive imposition of liability on employers for healthcare benefits to former employees).
63. See, e.g., Troxel v. Granville, 530 U.S. 57, 77 (2000) (relying on Meyer, but for the narrow proposition that the Due Process Clause protects "a parent's interests in the nurture, upbringing, companionship, care, and custody of children"). As the quotation accompanying note 52, supra, indicates, Meyer located these interests within a much broader freedom of self-determination that included economic matters like choosing an occupation and making contracts.
64. See, e.g., Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) (applying strict scrutiny under the First Amendment to strike down an economic regulation of the sale of medical information in the healthcare industry).
65. The challenges in the Florida litigation, for example, did not appeal the district court's dismissal of their substantive due process claim. See Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1292 n.93 (11th Cir. 2011).
66. See Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 178 (1992).
67. See, e.g., Lynn A. Baker, Conditional Spending after Lopez, 95 COLUM. L. REV. 1911 (1995).
68. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987).
69. See, e.g., Amended Complaint, State of Florida, et al., v. U.S. Department of Health & Human Services, at 27 (May 14, 2010).
70. New York, 505 U.S. at 153-54.
71. See Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1262-68 (11th Cir. 2011).
72. Ann Althouse, The Vigor of Anti-Commandeering Doctrine in Times of Terror, 69 BROOK. L. REV. 1231, 1274 (2004).
73. 521 U.S. 898 (1997).
74. 554 U.S. 570 (2008).
75. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).
76. 545 U.S. 1 (2005).
77. See generally Note, Last Resorts and Fundamental Rights: The Substantive Due Process Implications of Prohibitions on Medical Marijuana, 118 HARV. L. REV. 1985 (2005).
78. See Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007).
79. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 391 (D. Mass. 2010).
80. Abigail R. Moncrieff, Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond, 37 AM. J. L. & MED. (forthcoming 2012) ("The kind of liberty at issue here is a generalized freedom from governmental restraint. The question for Obamacare under this theory, then, is not whether the insurance mandate violates individual rights in a way that ought to receive scrutiny under the Fifth Amendment, but rather whether strongly-felt individual objections to the mandate ought to counsel in favor of state control.").
81. United States v. Bond, 131 S. Ct. 2355, 2364 (2011).
82. THE FEDERALIST No. 51, at 351 (James Madison) (Jacob E. Cooke ed. 1961).
83. See also Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1284-91 (2004) (discussing the ways in which federalism protects liberty).
84. See, e.g., Larry Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 196-97 ("Realist limits [that is, "attempts to track what federalism was really meant to protect"] can never effect effective judicial limits on governmental power. ... If limits are to be found, they must be made. And if they are to be made, they will be made only with the tools of a sophisticated formalism.").
85. See, e.g., Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 58 (1992) (describing "rules" as captur[ing] the background principle or policy in a form that from then on operates independently" and "standards" as "tend[ing] to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation").
86. See, e.g., Jack Balkin, Commerce, 109 MICH. L. REV. 1 (2010) (using a similar analysis to that developed by Professors Cooter and Siegel).
87. After all, a justice swears her oath to uphold the Constitution-not, I submit, the particular doctrines that the Court has developed to implement the Constitution. Those doctrines have the claim of stare decisis, of course, but a justice does not violate her oath when she determines that a prior decision meets the Court's criterion for overruling. See Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992) (articulating those criteria); see also, e.g., Agostini v. Felton, 521 U.S. 203, 235-36 (1997) (collecting cases and noting that stare decisis is "not an inexorable command" but "a policy judgment" that "is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions"). Presumably, Tribe does not think that the Court that developed the current, highly deferential doctrines violated its constitutional duty by departing from the prior dual federalist regime in cases like Wickard v. Filburn, 317 U.S. 111 (1942). But unless we think that current doctrine is simply "true"-that it is congruent with the full conceptual meaning of the relevant constitutional principles rather than simply an instance of prudential underenforcement-a current justice would have the same option of recalibrating the appropriate level of doctrinal deference.
88. See HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 2001) (1953).
89. See also Richard H. Fallon, Jr., Reflections on the Hart & Wechsler Paradigm, 47 VAND. L. REV. 953, 971-75 (1994) (discussing the place of this principle in Legal Process thought).
90. See, e.g., Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1163 (10th Cir. 2007) (holding that appellants face a difficult burden in establishing "clear error" because "in a bench trial,. .. the district court. .. enjoys the benefit of live testimony and has the opportunity firsthand to weigh credibility and evidence").
91. 17 U.S. 316, 352-60 (1819).
92. For this reason, President Andrew Jackson's subsequent veto of the Bank on constitutional grounds did not necessarily represent a "disagreement" with McCulloch, but rather was an exercise of the authority that the Court had left with the political branches. McCulloch held, in other words, that the political branches get to decide whether a Bank is "necessary"-not that the Bank is necessary. President Jackson, speaking for the Executive Branch, was willing to say that it was not.
93. See ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON 88-92 (1945).
94. United States v. Lopez, 514 U.S. 549, 604 (1995) (Souter, J., dissenting) (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993)).
95. Lopez, 514 U.S. at 604.
96. Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 399-408 (1985).
97. See U.S. CONST. art. II, § 1, cl. 5 (stating that "neither shall any person be eligible to that office who shall not have attained to the age of thirty five years").
98. See Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1733-42 (1985).
99. 22 U.S. (9 Wheat.) 1, 187-239 (1824). I am using Gibbons, of course, precisely because it is so frequently cited by nationalists to justify a broad vision of national legislative authority.
100. On the first proposition, enumerated powers, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("The authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce 'among the several States' and the internal concerns of a State."); see also United States v. Lopez, 514 U.S. 549, (1995) (Breyer, J., dissenting) (insisting that "[t]o hold this statute constitutional is not to 'obliterate' the 'distinction between what is national and what is local'" and suggesting that the Federal Government would lack power "to regulate 'marriage, divorce, and child custody,' or to regulate any and all aspects of education") (quoting id. at 564, 567 (majority opinion)).
101. Matthew Adler, State Sovereignty and the Anti-Commandeering Cases, 574 ANNALS 158, 161 (2001) ("[D]oes our Constitution limit the powers of the national government and reserve regulatory powers to the states? The answer-and it is hard to see how there could even be reasonable disagreement on this score-is yes.. .. In short, there are at least some types of legislation (such as laws regulating wholly intrastate activities) that the Constitution permits states to enact but disempowers the national government from enacting.").
102. On the second proposition, preservation of meaningful competences for both state and federal governments, see JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 170-80 (1996) (recounting how nationalist efforts at the Philadelphia Convention truly to subordinate the States were defeated, and the ultimate compromises protected a meaningful role for state governments).
103. THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("[A]s the plan of the convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States.").
104. Koen Lenaerts, Federalism: Essential Concepts in Evolution-The Case of the European Union, 21 FORDHAM INT'L L. J. 746, 748 (1998) ("[F]ederalism searches for the balance between the desire to create and/or to retain an efficient central authority. .. and the concern of the component entities to keep or gain their autonomy so that they can defend their own interests.").
105. On the third proposition, judicial review, see, e.g., Lopez, 514 U.S. at 578 (Kennedy, J., concurring) ("[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.").
106. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2224 n.197 (1998) ("[T]o declare federalism limits unenforceable is destabilizing and that the possibility of judicial enforcement is conducive to more responsible governance consistent with constitutional traditions and judicial competencies.").
107. Koen Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 AM. J. COMP. L. 205, 263 (1990) ("Federalism is present whenever a divided sovereign is guaranteed by a national or supranational constitution and umpired by the supreme court of the common legal order.") (emphasis added).
108. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 559 (1954) (emphasizing non-judicial checks on national authority, but acknowledging that "[t]his is not to say that the Court can decline to measure national enactments by the Constitution when it is called upon to face the question in the course of ordinary litigation; the supremacy clause governs there as well").
109. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1236 (1994).
110. 514 U.S. 549 (1995).
111. See, e.g., Steven G. Calabresi, Federalism and the Rehnquist Court: A Normative Defense, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 24, 34 (2001) ("Underenforced, but symbolic, laws against drug use, like underenforced, but symbolic, federalism cases, serve important social purposes. They teach the public about the proper hierarchy of norms and values, and in legislative bodies they help to set the agenda for policymaking debates.").
112. Hence, I have long agreed with Mr. Leitch that such decisions are often part of a "dialectic" occurring between the Court and the public.
113. See Bryan Leitch, On the Difficulty of Separating Law and Politics: Federalism and the Affordable Care Act, 75 Law & Contemp. Probs., no. 3, 2012, at 207.
114. Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1214 (1978).
115. 249 U.S. 47 (1919) (upholding convictions under the Espionage Act for distributing leaflets opposing the military draft). If one prefers to think of cases like Schenck as simply mistakes, rather than as instances of underenforcement, then consider Washington v. Davis, 426 U.S. 229 (1976), which required proof of discriminatory purpose rather than mere disparate impact to make out an Equal Protection claim. Although reasonable people may disagree about whether Davis underenforces the Equal Protection Clause, one need not have a fully developed conception of equal protection in order to discuss the issue.
116. See, e.g., Timothy Zick, Statehood as the New Personhood: The Discovery of Fundamental "States' Rights", 46 WM. & MARY L. REV. 213, 215 (2004) ("Federal power and supremacy long ago eclipsed state power, no matter what barometer one consults.").
117. 131 S. Ct. 2591, 2595-99 (2011).
118. See FELIX FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY, AND WAITE (1937)
119. Larry Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 174.
120. THE FEDERALIST NO. 78, at 526 (Alexander Hamilton) (J.E. Cooke ed., 1961).
121. See Nixon v. United States, 506 U.S. 224, 228 (1993); Baker v. Carr, 369 U.S. 186, 226 (1962).
122. see generally Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274 (2006).
123. See, e.g., Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488 (1955) ("It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.").
124. Compare JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 171-259 (1980), with United States v. Morrison, 529 U.S. 598, 610-19 (2000) (rejecting the dissent's argument that the Constitution "remits [Commerce Clause issues] to politics").
125. This approach is probably more faithful than Dean Choper's to the "original meaning" of Herbert Wechsler's discussion of the "political safeguards of federalism."
126. See Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 71 (2004).
127. 381 U.S. 479, 484-86 (1965).
128. For Judge Bork's critique, see Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L. REV. 1 (1971)..
129. See, e.g., Lawrence v. Texas, 539 U.S. 558, 564-79 (2003) (recognizing a right to engage in gay sex under the Due Process clause).
130. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 563-74 (1996).
131. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
132. See, e.g., Elkins v. United States, 364 U.S. 206, 222 (1960) ("[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.").
133. See, e.g., Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding that capital punishment for child rape violates the Eighth Amendment); Roper v. Simmons, 543 U.S. 551 (2005) (striking down the juvenile death penalty under the Eighth Amendment); Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally disabled violates the Eighth Amendment).
134. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959, 963 (2008).
135. 165 U.S. 578, 590-92 (1897).
136. 198 U.S. 45, 64 (1905).
137. See, e.g., Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
138. Tony A. Freyer, Book Review, Brandeis and the Progressive Constitution: Erie, The Judicial Power, and the Politics of the Federal Courts in Twentieth Century America by Edward A. Purcell, Jr., 18 CONST. COMMENT. 267, 270 n.8 (2001) ("The objective fact that the Lochner era had a low rate of invalidation has been noted by historians and lawyers for some time.").
139. See, e.g., Lochner, 198 U.S. at 59 ("There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?").
140. See, e.g., Shreveport Rate Cases, 234 U.S. 342, 350-55 (1914).
141. United States v. E.C. Knight Co., 156 U.S. 1, 13-18 (1895).
142. Stafford v. Wallace, 258 U.S. 495, 518-28 (1922).
143. E.C. Knight, 156 U.S. at 11-18.
144. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring) (acknowledging that "[t]here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce," but insisting that "[t]he law is not indifferent to considerations of degree"). The Court also plainly recognized the relation between federalism-based limitations on government action and individual economic liberties. Enforcing limits on the Commerce Clause, after all, prevented national interference with the free market at the same time that the Court's rigorous enforcement of the dormant Commerce Clause worked alongside the Due Process cases to prevent state interference.
145. See generally Stephen A. Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. CHI. L. REV. 483 (1997).
146. 163 U.S. 537, 551-52 (1896) (observing that social equality of the races "'can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community. .. .' If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane") (quoting People v. Gallagher, 93 N.Y. 438, 448 (1883)).
147. Schenck v. United States, 249 U.S. 47, 53 (1919).
148. Abrams v. United States, 250 U.S. 616, 624 (1919).
149. See, e.g., Davis v. Beason, 133 U.S. 333 (1890) (upholding a federal statute requiring Mormons to disavow the teachings of the church); Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) (upholding a federal statute dissolving the Mormon Church and seizing its property); Reynolds v. United States, 98 U.S. 145 (1878) (upholding convictions for polygamy against a Free Exercise challenge).
150. See MICHAEL W. MCCONNELL, JOHN H. GARVEY & THOMAS C. BERG, RELIGION AND THE CONSTITUTION 483 (2d ed. 2006). Of course, the Establishment Clause was not even incorporated against the States until 1947, in Everson v. Board of Education, 330 U.S. 1 (1947). But the refusal to interpret the Fourteenth Amendment as applying particular Bill of Rights protections to the States is not that different from underenforcement-after all, the effect of nonincorporation was to defer issues of religious liberty to state institutions.
151. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (establishing a presumption of irreparable injury in free speech cases where the plaintiff seeks injunctive relief, because "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury").
152. See, e.g., Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1328-65 (11th Cir. 2011) (Marcus, J., dissenting).
153. See, e.g., Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2738-42 (2011) (striking down California's attempt to regulate violent videogames under a First Amendment strict scrutiny standard).
154. See, e.g., DAVID M. KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN DEPRESSION AND WAR, 1929-1945, 379 (1999) ("Above all, the New Deal gave to countless Americans who had never had much of it a sense of security, and with it a sense of having a stake in their country.").
155. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 862 (1992) (discussing the Lochner Court's failure to adapt constitutional doctrine to changing economic circumstances and concluding that "the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss").
156. See generally Lynn Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 DUKE L.J. 75, 80-85 (2001) (trying and failing).
157. Some of the ACA's defenders have asserted that the Act's broad assertion of national power is faithful not only to the post-New Deal settlement but also to the Framers' original intent
158. See, e.g., Simon Lazarus, The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government, AM. CONST. SOC'Y 4 (Feb. 2011), http://www.acslaw.org/sites/default/files/lazarus_-_health_reform_lawsuits_0.pdf ("[I]t would be more accurate to view what libertarian critics call the New Deal Supreme Court's 'revolution of 1937' as a restoration of the vision of the original Framers, who sought to supplant the feckless Articles of Confederation with a charter for effective and responsive national governance.").
159. RUCE ACKERMAN, WE THE PEOPLE: VOLUME 2: TRANSFORMATIONS (2000), or notions of "living constitutionalism,"
160. See, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 222, 204, 222-24 (1980).
161. Michael C. Dorf, Nullification, Secession, and Guns Show Constitutional Meaning is Never Settled, FINDLAW'S WRIT, Feb. 24, 2010, http://writ.news.findlaw.com/dorf/20100224.html.
162. Ernest A. Young, The Constitution Outside the Constitution, 177 YALE L.J. 408 (2007) (identifying entrenchment as a key purpose of constitutions). Many instances of popular constitutionalism, moreover, are spectacularly unattractive.
163. See, e.g., Lucas A. Powe, Jr., Are "the People" Missing in Action (and Should Anyone Care)?, 83 TEX. L. REV. 855, 866-70 (2005) (identifying the South's "massive resistance" to Brown v. Board of Education as an instance of popular constitutionalism).
164. See, e.g., Kenneth T. Cuccinelli, II, E. Duncan Getchell, Jr., & Wesley G. Russell, Jr., Why the Debate Over the Constitutionality of the Federal Health Care Law is About Much More than Health Care, 15 TEX. REV. L. & POL. 293, 334-38 (2011) (essay, by the Virginia Attorney General and senior staff, grounding Virginia's suit challenging the ACA in a broader vision of limited government).
165. See, e.g., United States v. Jones, 132 S. Ct. 945, 950-51 (2012) (relying on social conventions to define the meaning of a "search" under the Fourth Amendment); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1991) (relying on broad social understandings of the relationship between reproductive liberty and women's roles in considering the stare decisis force of Roe v. Wade).
166. See, e.g., Cuomo v. Clearing House Ass'n, L.L.C., 129 S. Ct. 2710, 2718-19 (2009) (interpreting the scope of preemption under the National Bank Act by reference to settled understandings that state agencies have authority to enforce state laws against state banks).
167. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. (forthcoming 2012-2013) (exploring the degree to which settled practice defines the constitutional separation of powers).
168. See, e.g., Dukes v. Wal-Mart, Inc., 131 S. Ct. 2541 (2011) (noting, in holding that the trial court improperly certified a class action under Federal Rule of Civil Procedure 23, that "[w]e are presented with on of the most expansive class actions ever"); Morrison v. Olsen, 487 U.S. 654, 681 (1988) (resolving whether Congress may vest certain powers concerning independent counsel in the courts by determining that those powers were analogous to other powers the courts had long exercised).
169. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
170. See, e.g., Mapp v. Ohio, 347 U.S. 643 (1961).
171. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964).
172. Cf., e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
173. Korematsu v. United States, 323 U.S. 214 (1944); see also Ex parte Quirin, 317 U.S. 1 (1942).
174. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
175. See LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 75-103 (2000) (describing the Warren Court's national security cases).
176. Jack M. Balkin, How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure, 39 SUFFOLK U. L. REV. 27, 30 (2005).
177. Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1067 (2001).
178. Ilya Somin, The Tea Party Movement and Popular Constitutionalism, 105 NW. U. L. REV. 300 (2011) (situating the Tea Party within broader theoretical discussions of popular constitutionalism and social movements).
179. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
180. For an overview of state litigation challenging the ACA, see Richard Cauchi, State Legislation and Actions Challenging Certain Health Reforms, 2011-2012, NCSL, (Feb. 20, 2012), http://www.ncsl.org/issues-research/health/state-laws-and-actions-challenging-aca.aspx#AG.
181. See infra notes 244-245 and accompanying text
182. See, e.g., Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Constitutional Power, 78 IND. L.J. 363, 367 (2003) ("Since 1995, the Rehnquist Court has begun adopting theories of congressional power and federalism strikingly similar to those developed in the reports of the Reagan Justice Department. One of those reports was devoted to the critical role of judicial appointments in shaping the development of the law.").
183. Rebecca E. Zietlow, Democratic Constitutionalism and the Affordable Care Act, 72 OHIO ST. L.J. 1367, 1367 (2011).
184. Rebecca M. Zietlow, Popular Originalism? The Tea Party Movement and Constitutional Theory 5-6 (U. Toledo Legal Stud., Research Paper No. 2011-09, 2011).
185. See, e.g., Adam Liptak, Tea-ing Up the Constitution, N.Y. TIMES, Mar. 13, 2010, at WK1.
186. Richard Albert, The Constitutional Politics of the Tea Party Movement, 105 NW. U. L. REV. COLLOQUY 267, 267-68 (2011).
187. Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1058-62 (1975).
188. David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 GEO. MASON L. REV. 237, 276-77 (2009) (discussing the influence of the Solicitor General on the Supreme Court's decisions to grant or deny certiorari).
189. See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 772-74 (2000) (collecting studies on the influence of amicus briefs filed by the Solicitor General).
190. See generally Daniel J. Meltzer, Lecture: Executive Defense of Congressional Acts, 61 DUKE L. J. 1183 (2012).
191. Final decision on the constitutional issues could be postponed, for example, if the Court decides that the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a) (2006), precludes pre-enforcement review of the individual mandate. See Seven-Sky v. Holder, 661 F.3d 1, 21-23 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
192. Megan Mullin, Federalism, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 209, 214 (Nathaniel Persily, Jack Citrin, & Patrick J. Egan eds., 2008).
193. Cindy D. Kam & Robert A. Mikos, Do Citizens Care about Federalism? An Experimental Test, 4 J. EMPIRICAL LEGAL STUD. 589, 598 (2007) (reporting results from the 2000 Attitudes Toward Government Study, but concluding that "[t]hese findings are consistent with those reported by other scholars, using other nationally representative surveys").
194. THE FEDERALIST NO. 17, at 109 (Alexander Hamilton) (J.E. Cooke ed., 1961).
195. Robert Mikos, The Populist Safeguards of Federalism, 68 OHIO ST. L.J. 1669, 1729 (2007).
196. See March J. Hetherington & John D. Nugent, Explaining Public Support for Devolution: The Role of Political Trust, in WHAT IS IT ABOUT GOVERNMENT THAT AMERICANS DISLIKE? 134, 134-35 (John R. Hibbing & Elizabeth Theiss-Morse eds., 2001).
197. See Manoj Mate & Matthew Wright, The 2000 Presidential Election Controversy, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 333, 349 (Nathaniel Persily, Jack Citrin, & Patrick J. Egan eds., 2008). During the Warren years, the Court defined itself as a guardian and arbiter of individual rights and civil liberties. Although the Rehnquist Court was on balance a more conservative Court, in some areas it followed the Warren Court in continuing to uphold and protect core individual rights and civil liberties. Many liberals continue to support that vision even as the Court has become more conservative in recent years.
198. See, e.g., Clinton v. City of New York, 524 U.S. 417 (1998); Clinton v. Jones, 520 U.S. 681 (1997); INS v. Chadha, 462 U.S. 919 (1983); United States v. Nixon, 418 U.S. 683 (1974).
199. See, e.g., Eastern Enters. v. Apfel, 524 U.S. 498 (1998) (striking down a federal statutory provision imposing retroactive costs on companies that had been in the coal business on a combination of Takings Clause and Due Process theories); BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) (striking down a state court punitive damages award as excessive on a substantive due process theory); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (holding that a South Carolina restriction on development of beachfront property amounted to a regulatory taking).
200. 131 S. Ct. 2653, 2659 (2011).
201. See also Ernest A. Young, Sorrell v. IMS Health and the End of the Constitutional Double Standard, 36 VT. L. REV. (forthcoming 2012) (discussing broader implications of Sorrell).
202. See generally Kate Greenwood, The Ban on Off-Label Promotion after Sorrell v. IMS Health, HEALTH REFORM WATCH (Aug. 3, 2011), http://www.healthreformwatch.com/2011/08/03/the-ban-onoff-label-promotion-after-sorrell-v-ims-health/.
203. Lisa Blatt, Jeffrey Handwerker, John Nassikas & Kirk Ogrosky, Does Sorrell v. IMS Health Mark the End of Off-Label Promotion Prosecution?, 9 PHARMACEUTICAL L. & INDUS. REPORT 909 (2011), http://www.arnoldporter.com/resources/documents/ArnoldPorterLLP_BNAPharmaceuticalLawIndustryReport_7152011.pdf.
204. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008); Clinton v. City of New York, 524 U.S. 417 (1998).
205. See, e.g., Citizens United v. FEC, 130 S. Ct. 876 (2010); Bush v. Gore, 531 U.S. 98 (2000); Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).
206. See generally Richard A. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 29 (2003) (discussing the Supreme Court's increasing intervention in the democratic process).
207. [2] U.S. (2 Dall.) 419 (1793).
208. See Hans v. Louisiana, 134 U.S. 1 (1890).
209. See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996).
210. See, e.g., Mitchell N. Berman, R. Anthony Reese, & Ernest A. Young, State Accountability for Violations of Intellectual Property Rights: How to "Fix" Florida Prepaid (And How Not To), 79 TEX. L. REV. 1037, 1048 (2001) (discussing Congress's attempt to abbrograte state sovereign immunity in the intellectual property area in response to prior court decisions).
211. See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006); Tennessee v. Lane, 541 U.S. 509 (2004); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003).
212. Cf. Coleman v. Court of Appeals of Maryland, 2012 U.S. Lexis 2315 (Mar. 20, 2012) (distinguishing Hibbs and holding that state sovereign immunity barred suits under the self-care provision of the Family and Medical Leave Act).
213. Jeffrey M. Jones, Americans Divided on Repeal of 2010 Healthcare Law, GALLUP POLITICS (Feb. 27, 2012), http://www.gallup.com/poll/152969/Americans-Divided-Repeal-2010-Healthcare-Law.aspx.
214. THE AP-NATIONAL CONSTITUTION CENTER POLL (Aug. 2011), http://surveys.ap.org/data/GfK/AP-GfK%20Poll%20Aug%202011%20FINAL%20Topline_NCC_1st% 20story.pdf. Two percent were unsure.
215. See, e.g., Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 CONST. COMMENT. 315, 319-41 (1994).
216. See generally Christina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008).
217. See generally Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009).
218. See Elizabeth Weeks Leonard, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 39 HOFSTRA L. REV. 110, 116-17 (2010).
219. See, e.g., Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).
220. Chuck Lindell, Texas Attorney General Greg Abbott opposes federal government on many fronts, AUSTIN AMERICAN-STATESMAN, Aug. 7, 2010, http://www.statesman.com/news/texaspolitics/ texas-attorney-general-greg-abbott-opposes-federal-government-847623.html?printArticle=y.
221. Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 267-72 (4th Cir. 2011).
222. See Aaron Marshall, Ohio Voters Say No to Health Insurance Mandates, Older Judges, CLEVELAND PLAIN DEALER, Nov. 9, 2011, http://www.cleveland.com/politics/index.ssf/ 2011/11/ohio_voters_say_no_to_health_i.html.
223. See Zach Howard, Vermont Single-Payer Health Care Law Signed by the Governor, REUTERS, May 26, 2011, available at http://www.huffingtonpost.com/2011/05/26/vermont-health-care-reform-lawsingle-payer_n_867573.html.
224. See Heather K. Gerken, Dissenting by Deciding, 56 STAN. L. REV. 1745 (2005).
225. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1187 (1992).
226. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 384 (1997).
227. See, e.g., David J. Barron, Reclaiming Federalism, Dissent, Spring 2005, available at http://dissentmagazine.org/article/?article=249 (last visited Mar. 27, 2012) (articulating a liberal case for state and local autonomy).