On the difficulty of separating law and politics: Federalism and the affordable care act

Law and Contemporary Problems

Volumn 75, Issue 3, 2012, Pages 203-214

  Leitch, Bryan ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84861874832     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (39)

1. Ernest A. Young, Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law, 75 LAW & CONTEMP. PROBS. no. 3, 2012 at 157.
2. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1264 (1978).
3. See, e.g., Ilya Somin, The Tea Party and Popular Constitutionalism, 105 NW. U. L. REV. 300, 300 (2011) (defining "popular constitutionalism" as "the involvement of public opinion and popular movements in influencing constitutional interpretation").
4. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 42 U.S.C.).
5. Megan Mullin, Federalism, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 216 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008).
6. See, e.g., Bryan J. Leitch, Where Law Meets Politics: Freedom of Contract, Federalism, and the Fight Over Healthcare, 27 J.L. & POL. 177, 181-95 (2011).
7. I understand Professor Young to be using the term "doctrine" to mean rules articulated in prior judicial decisions, rather than as a catch-all term enveloping the Court's exercise of prudence or discretion in addition to its precedential rules
8. ARCHIBALD COX, THE COURT AND THE CONSTITUTION 69 (1987)
9. A similar criticism could be leveled at defenders of the ACA who argue that it is an "easy case" under current doctrine. The strongest implication of that claim seems to rely as well on the notion that judicial discretion, choice, and creativity are somehow absent when applying, rather than formulating, doctrine.
10. Accord ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 158-59 (1990) (observing that the choice of whether to construe cases broadly or narrowly engages "the prudence of a court" and mandates a prediction of likely effects).
11. Compare Florida ex rel. Att'y Gen. v. U.S. Dep't Health & Human Servs., 648 F.3d 1235, 1269 (11th Cir. 2011) (invalidating the mandate based on the Supreme Court's "principal Commerce Clause precedents," including Wickard, Heart of Atlanta, Lopez, Morrison, and Raich), cert. granted, 132 S. Ct. 604, with Thomas More Law Ctr. v. Obama, 651 F.3d 529, 541-49 (6th Cir. 2011) (upholding the minimum coverage provision, in large part, because it met the Court's doctrinal "rational basis" test as derived from Wickard, Lopez, Morrison, and Raich).
12. Florida ex rel. Att'y Gen., 648 F.3d at 1286.
13. I acknowledge but do not endorse a contrasting interpretation of these cases as proving Professor Young's underenforcement claim. That is, one could reasonably argue that the Eleventh Circuit's decision is the "exception that proves the rule." Doctrine, the argument might go, so egregiously underenforces federalism that it categorically prohibits judges from exercising reasoned discretion in accordance with their ethical or political commitments to limited national power. I disagree with this reading of the cases, however, for the reasons stated above.
14. Cf. PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 166-67 (1982) (stressing that judges often "find a particular doctrinal argument persuasive precisely because they are being pulled by the unacknowledged force of constitutional, ethical argument").
15. Robert Post, Theories of Constitutional Interpretation, in LAW AND THE ORDER OF CULTURE 35 (Robert Post ed., 1991).
16. PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 56 (1991) (explaining that the doctrinal approach often "measure[s] its standards-neutrality and generality-against arguments generated by the other forms," like ethical, structural, or textual argument)
17. See also H. Jefferson Powell, Constitutional Investigations, 72 TEX. L. REV. 1731, 1743 (1993) (arguing that when doctrine supports equally plausible but conflicting outcomes, "the decisionmaker has no choice but to choose the outcome that seems just" according to his constitutional sensibilities).
18. See Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX L. REV. 959, 960 (2008) ("The rule of law depends for its practical realization on political trust between the government and the governed. In circumstances in which trust is strained, the virtue of statesmanship is especially valuable and produces leadership.").
19. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 225-26 (2009)
20. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 219 (2004) ("[R]ational basis scrutiny. .. was a rule of judicial restraint, not substantive constitutional law.").
21. See, e.g., Randy E. Barnett, Three Federalisms, 39 LOY. U. CHI. L.J. 285, 285 (2008) (describing three major federalism epochs: "Enumerated Powers Federalism," "Fundamental Rights Federalism," and "Affirmative State Sovereignty Federalism").
22. Compare The Daniel Ball, 77 U.S. (9 Wall.) 557, 564-65 (1870) (holding unanimously that Congress could regulate ships traveling within only one state because (1) the Commerce Clause "authorizes all appropriate legislation for the protection or advancement of... interstate... commerce"; and (2) because the ship at issue was transporting goods originating in, and destined for, other states it "was engaged in commerce between the States" regardless of how "limited that commerce may have been"), with Hammer v. Dagenhart, 247 U.S. 251, 273-77 (1918) (striking down a federal child labor law, which only regulated goods in interstate commerce, because the Commerce Clause enabled Congress only to "regulate [interstate] commerce," and did "not to give it authority to control the States in their exercise of the police power over local trade and manufacture").
23. Carter v. Carter Coal Co., 298 U.S. 238, 291 (1936) (holding that federal power does not "extend[] to purposes affecting the Nation as a whole with which the states severally cannot deal or cannot adequately deal").
24. 22 U.S. (9 Wheat.) 1, 194 (1824) (holding that Congress may regulate navigation under the Commerce Clause because, in Chief Justice Marshall's view, "[t]he word 'among' means intermingled with," and "Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior").
25. 379 U.S. 294, 299, 304 (1964) (upholding the public accommodation provisions of the 1964 Civil Rights Act on the ground that, in the aggregate, racial discrimination impedes the "flow of interstate commerce" and "impose[s] commercial burdens of national magnitude," because such discrimination discourages minorities from participating in interstate business, travel, and employment).
26. Compare United States v. Darby, 312 U.S. 100, 122 (1941) (accepting the government's contention that the Fair Labor Standards Act was constitutional because the commerce power authorized Congress to remedy national problems like "unfair methods of competition made effective through interstate commerce," which the States could not remedy acting alone) (citation omitted), with A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 528 (1935) (rejecting the government's contention that, simply because Congress was faced with a "grave national crisis," the National Industrial Recovery Act was constitutional; the Court instead held that "[e]xtraordinary conditions do not create or enlarge constitutional power").
27. Compare United States v. E.C. Knight, 156 U.S. 1, 12 (1895) (dismissing the notion that Congress's commerce power extends to intrastate economic practices simply because those practices may "ultimately affect[]" "interstate or international commerce"), with Gonzales v. Raich, 545 U.S. 1, 17-19 (2005) (holding that the Commerce Clause empowers Congress to regulate intrastate noneconomic activities, like medicinal marijuana, when those activities "substantially affect" interstate commerce).
28. Cf. Paul J. Mishkin, The Current Understanding of the Tenth Amendment, in FEDERALISM AND THE JUDICIAL MIND: ESSAYS ON AMERICAN CONSTITUTIONAL LAW AND POLITICS 154-55 (Harry N. Scheiber ed., 1992) (contending that the Court's refusal to "draw lines" in federalism cases is not merely a judicial restraint issue-it instead amounts to a declaration that the federalism "issue, or the interests involved, are not important enough to warrant the effort in trying" to draw the lines).
29. See, e.g., Neil S. Siegel, A Coase Theorem for Constitutional Theory, 2010 MICH. ST. L. REV. 583, 584 (2010) (noting the "capacity of the justices to shape social values or otherwise to decide important matters with finality").
30. See, e.g., Jack M. Balkin & Reva B. Siegel, Introduction, in THE CONSTITUTION IN 2020 5 (Jack M. Balkin & Reva B. Siegel eds., 2009) ("The constitutional revolution of the New Deal followed a groundswell of popular sentiment for change, to which an older Court had been unresponsive.").
31. Accord ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 31 (1962) (observing the Court's role in "concretiz[ing]... the Constitution" as "the symbol of nationhood, of continuity, of unity and common purpose").
32. See Paul J. Mishkin, The Supreme Court, 1964 Term-Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56, 71 (1965) (theorizing that there is a "normative power" to "actual" law, because "that which is law tends by its very existence to generate a sense of being also that which ought to be the law").
33. See, e.g., Kaiser Health Tracking Poll, Public Opinion on Health Care Issues, KAISER.COM, Feb. 2011, at 1 ("Overall, 48 percent of Americans have an unfavorable opinion of the [ACA] and 43 percent hold favorable views.").
34. Frank Newport, One Year Later, Americans Split on Healthcare Law, GALLUP.COM, Mar. 21, 2011 (indicating that 46% of respondents said the ACA "was a good thing" and 44% said "it was a bad thing"), available at http://www.gallup.com/ poll/146729/One-Year-Later-Americans-Split-Healthcare-Law.aspx.
35. E.g., Lawrence R. Jacobs, Ph.D., 1994 All Over Again? Public Opinion and Health Care, 358 N. ENGL. J. MED. 1881, 1882 (2008) ("[P]ublic perceptions [regarding health reforms] appear fragile and susceptible to change.").
36. see also 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? 150-51 (John R. Hibbing & Elizabeth Theiss-Morse eds., 2001) (stressing that if contemporary confidence in state governments "is based on something other than the demonstrated abilities of those governments to address problems, that satisfaction may dry up quickly in the face of even minor indications of state incapacity").
37. David Grande, Sarah E. Gollust & David A. Asch, Polling Analysis: Public Support For Health Reform Was Broader Than Reported and Depended on How Proposals Were Framed, 30 HEALTH AFFAIRS 1242, 1246 (2011) (indicating that in the lead up to the ACA's enactment, "overall average level of public support for the individual mandate was 53.0 percent").
38. ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 102 (1975).
39. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lessons of Lochner, 76 N.Y.U. L. REV. 1383, 1453, 1455 (2001).