Political ideology and constitutional decisionmaking: The coming example of the affordable care act

Law and Contemporary Problems

Volumn 75, Issue 3, 2012, Pages 1-16

  Chemerinsky, Erwin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84861867780     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (41)

1. Gore v. Harris, 772 So. 2d 1243, 1247 (Fla. 2000).
2. 531 U.S. 98 (2000) (per curiam) (holding that counting uncounted votes in presidential election without preset standards violated equal protection, thus ensuring the presidency for George W. Bush).
3. For a description of the events surrounding the decision, see ALAN M. DERSHOWITZ, SUPREME INJUSTICE: HOW THE HIGH COURT HIJACKED ELECTION 2000 (2001).
4. RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001).
5. JEFFREY TOOBIN, TOO CLOSE TO CALL: THE THIRTY-SIX DAY BATTLE TO DECIDE THE 2000 ELECTION (2001)
6. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 42 U.S.C.).
7. U.S. CONST. art. 1, § 8, cl. 3 (granting Congress the power to "regulate commerce.. among the several states"); U.S. CONST. art. 1, § 8, cl. 1 (granting Congress the power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare"); U.S. CONST. art. 1, § 8, cl. 18 (granting Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution" its powers).
8. Judge Jeffrey Sutton, an appointee of President George W. Bush, voted to uphold the individual mandate in Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011). Judge Frank Hull, an appointee of President Bill Clinton, voted to invalidate the individual mandate in Florida ex rel. Att'y Gen. v. U.S. Dep't Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011).
9. 26 U.S.C.A. § 5000A (West 2011) (minimum coverage provision).
10. Even the constant refrain, discussed below, that if Congress can mandate health coverage it also can force people to buy (and maybe even eat) broccoli, raises an individual freedom concern. Yet, the challenge to the individual mandate in litigation is never about individual freedom; it is always about the scope of Congress's powers.
11. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 729-31 (1963) (" Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy... [That doctrine] has long since been discarded... It is now settled that States have power to legislate against what are found to be injurious practices in their commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law." (internal quotation marks omitted)).
12. See Steward Mach. Co. v. Davis, 301 US. 548 (1937) (upholding the tax in the Social Security Act); Helvering v. Davis, 301 U.S. 619 (1937) (upholding the Social Security Act under Congress's power to spend for the "general welfare").
13. 514 U.S. 549 (1995) (declaring unconstitutional the federal Gun-Free School Zone Act, which made it a federal crime to have a firearm within 1,000 feet of a school, as exceeding the scope of the Commerce Clause).
14. 529 U.S. 598 (2000) (declaring unconstitutional the civil damages provision of the Violence Against Women Act as exceeding the scope of the Commerce Clause).
15. 42 U.S.C.A. § 13981 (West 2011).
16. Morrison, 529 U.S. at 632-33 (Souter, J., dissenting).
17. See, e.g., Florida ex rel. Att'y Gen. v. U.S. Dep't Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (declaring unconstitutional the individual mandate as exceeding the scope of Congress's commerce power).
18. Morrison, 529 U.S. at 627 (Thomas, J., concurring).
19. See 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 (1954) (arguing that judicial review to protect states is unnecessary because sufficient protection for states exists through the structure of the political system).
20. 545 U.S. 1 (2005).
21. See United States v. Butler, 297 U.S. 1, 66 (1936) (explaining Congress's broad power to tax and spend for the general welfare).
22. 26 U.S.C.A. § 5000A (West 2011).
23. See, e.g., Quill Corp. v. North Dakota, 504 U.S. 298, 310 (1992) (rejecting labels as determinative of constitutional analysis).
24. Jefferson Cnty. v. Acker, 527 U.S. 423, 439 (1999).
25. 156 CONG. REC. H1917 (daily ed. Mar. 21, 2010) (statement of Rep. Kirk) (" Among the new taxes is a new 'Individual Mandate Tax'.. of $2,250 per household or 2 percent of household income."); 155 CONG. REC. S12768 (daily ed. Dec. 9, 2009) (statement of Sen. Grassley) (" The.. individual mandate penalty tax.. is a tax. It can be called a penalty, but it is a tax."); 155 CONG. REC. S11454 (daily ed. Nov. 18, 2009) (statement of Sen. McCain) (" Taxes on individuals who fail to maintain government-approved health insurance coverage will pay $4 billion in new penalties.. ."); 155 CONG. REC. H12576 (daily ed. Nov. 6, 2009) (statement of Rep. Franks) (" It would impose a 2.5 percent penalty tax on those who do not acquire health care insurance."); 155 CONG. REC. S11143 (daily ed. Nov. 5, 2009) (statement of Sen. Johanns) (discussing "penalty tax on individuals without insurance"); 155 CONG. REC. S10746 (daily ed. Oct. 27, 2009) (statement of Sen. Enzi) (" Most young people will probably do the math and decide.. I can pay the $750-a-year tax penalty rather than pay $5,000 a year more for health insurance."); 155 CONG. REC. S8644 (daily ed. Aug. 3, 2009) (statement of Sen. Kyl) (" There would be a penalty if they refused to [buy health insurance] that would go directly to their income tax.").
26. Liberty Univ., Inc. v. Geithner, 2011 WL 3962915 (4th Cir. Sept. 8, 2011).
27. I.R.C. § 7421 (West 2000).
28. U.S. CONST. art. 1, § 8, cl. 18.
29. 17 U.S. (4 Wheat.) 316, 421 (1819).
30. 130 S. Ct. 1949 (2010).
31. 18 U.S.C.A. § 4248 (West 2011).
32. 521 U.S. 346 (1997).
33. Comstock, 130 S. Ct. at 1956.
34. Raich, 545 U.S. at 39 (Scalia, J., concurring).
35. Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) (Judge Sutton voted to uphold the law); Florida ex rel. Att'y Gen. v. U.S. Dep't Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (Judge Hull voted to invalidate the law).
36. 531 U.S. 98 (2000).
37. 554 U.S. 570 (2008) (holding that the Second Amendment protects a right of individuals to have firearms at least in the home for self-defense and is not limited to protecting a right to have firearms only for militia service).
38. 130 S. Ct. 3020 (2010) (holding that the Second Amendment applies to state and local governments through its incorporation into the Fourteenth Amendment).
39. See Florida ex rel. Att'y Gen., 648 F.3d at 1235 (11th Cir. 2011) (striking down individual mandate and emphasizing that it is regulating inactivity).
40. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).
41. See ERWIN CHEMERINSKY, THE CONSERVATIVE ASSAULT ON THE CONSTITUTION (2010)