Party polarization and judicial review: Lessons from the affordable care act

Northwestern University Law Review

Volumn 106, Issue 4, 2012, Pages 1821-1848

  Devins, Neal ^a  

^a Dept of Economics and Thomas Jefferson Program in Public Policy at the College of William and Mary   (United States)

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EID: 84869998860     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (157)

1. Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (to be codified as amended in scattered sections of 42 U.S.C.).
2. Rebecca E. Zietlow, Democratic Constitutionalism and the Affordable Care Act, 72 OHIO ST. L.J. 1367 (2011).
3. Professor Zietlow, Looking at statements made on the floor of Congress about the constitutionality of the ACA, suggests that Congress did take the Constitution into account when enacting the ACA. See id. at 1395-1401.
4. Neal Devins, Party Polarization and Congressional Committee Consideration of Constitutional Questions, 105 NW. U. L. REV. 737 (2011),
5. Statements made in the Congressional Record are an inadequate measure of Congress's interest in the Constitution. See id. at 766-68. More than that, although Professor Zietlow does an excellent job showcasing the number of lawmakers who spoke about the constitutionality of the ACA, I nonetheless argue in this Essay that lawmakers were not particularly interested in constitutional questions when debating the ACA. 3 132 S. Ct. 2566 (2012).
6. Michael W. McConnell, Op-Ed., The Liberal Legal Meltdown over ObamaCare, WALL ST. J., May 25, 2012, at A13.
7. Andrew Koppelman, Origins of a Healthcare Lie, SALON (May 31, 2012, 12:38 PM), http://www.salon.com/2012/05/31/origins_of_a_healthcare_lie/.
8. Peter Baker, Supporters Slow to Grasp Health Law's Legal Risks, N.Y. TIMES, June 24, 2012, at 1 (late edition)
9. Ezra Klein, Unpopular Mandate, NEW YORKER (June 25, 2012), http://www.newyorker.com/reporting/2012/06/25/120625fa_fact_klein.
10. Devins, supra note 2
11. Neal Devins, Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act, 106 NW. U. L. REV. COLLOQUY 261 (2012).
12. The public good argument (which I shall embrace and expand upon) is advanced
13. Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 DUKE L.J. 1277 (2001).
14. For scholarship discussing Congress's tendency to undervalue federalism (and the related absence of a federalism constituency),
15. Neal Devins, The Judicial Safeguards of Federalism, 99 NW. U. L. REV. 131 (2004),
16. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 NW. U. L. REV. 89 (2004).
17. NFIB also imposed limits on Congress's spending power, holding that the conditioning of all federal Medicaid dollars on state participation in the ACA's Medicaid expansion program was unduly coercive and therefore unconstitutional. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
18. Because the focus of my ACA case study is on the Commerce Clause, I will provide only limited discussion of the Spending Clause issue.
19. At the same time, I will express my personal disapproval of the Court's embrace of the action- inaction distinction in NFIB.
20. Keith E. Whittington, Hearing About the Constitution in Congressional Committees, in CONGRESS AND THE CONSTITUTION 87, 87-88 (Neal Devins & Keith E. Whittington eds., 2005).
21. John H. Aldrich & David W. Rohde, Congressional Committees in a Continuing Partisan Era, in CONGRESS RECONSIDERED 217, 217 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 9th ed. 2009).
22. Devins, supra note 2, at 741-53, for a detailed presentation of the data summarized in this paragraph.
23. From 1985 to 1990, there was no overall decline. The sustained decline (reflecting growing polarization in Congress) began around 1990. See id. at 743 fig.1.
24. Id. at 750.
25. From 1980 to 1994, Judiciary Committees held 56% of all constitutional hearings. Specifically, from 1985 to 1992, the Judiciary Committees held less than 50% of constitutional hearings, and the spike associated with the modern era began around 1992 (again reflecting growing polarization in Congress).
26. For an excellent treatment of party polarization in Congress since the early 1970s, see generally
27. Sean M. Theriault, PARTY POLARIZATION IN CONGRESS (2008).
28. In linking party polarization to changes in congressional constitutional hearing practices, I do not mean to suggest that party polarization is the only salient variable in the number and location of hearings. As I explain in Devins, supra note 2, at 768-75, changes in the national policy agenda, changes in party leadership, court decisionmaking, and presidential action all impact congressional practices-so there is year-to-year variability in congressional practices. At the same time, party polarization explains the general decline in constitutional hearings and the related rise of the Judiciary Committees as the only committees to regularly hold constitutional hearings.
29. Richard Pearson, Ex-Gov. George C. Wallace Dies at 79, WASH. POST, Sept. 14, 1998, at A1.
30. Party polarization refers to the ideological distance between the average Democratic and Republican lawmakers based on roll call voting in the House and Senate. In calculating party averages, roll call votes are registered as liberal, conservative, or moderate. See Party Polarization: 1879-2010, POLARIZED AM. (Jan. 11, 2011), http://polarizedamerica.com/Polarized_America.htm#POLITICALPOLARIZATION.
31. David W. Rohde et al., Parties, Committees, and Pivots: A Reassessment of the Literature on Congressional Organization 12 (Aug. 21, 2008) (unpublished manuscript) (on file with the Northwestern University Law Review).
32. Devins, supra note 2, at 756-759.
33. For an inventory of institutional reforms that have shifted power away from committees and to party leaders,
34. Devins, supra note 2, at 757-758.
35. C. Lawrence Evans, Committees, Leaders, and Message Politics, in CONGRESS RECONSIDERED 217 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 7th ed. 2001).
36. The issues explored in this and the next paragraphs are drawn from Devins, supra note 2, at 759-68.
37. id. at 768-75 (noting that notwithstanding the general decline in constitutional hearings, there are occasional spike-up years typically tied to presidential initiatives, court decisions, and changes in party control of Congress).
38. J. Mitchell Pickerill, CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM 142-143 (2004).
39. Devins, supra note 2, at 766-767.
40. Most importantly, the Judiciary Committees cannot treat constitutional issues as second order largely because they have jurisdiction over civil liberties, constitutional amendments, and federal courts (not to mention the Senate's power to confirm federal judges and Justice Department officials).
41. Today's Congress-as Bruce Peabody found in his study of lawmaker attitudes toward Court- Congress relations-no longer thinks that the Court should defer to its constitutional judgments.
42. Bruce G. Peabody, Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959-2001, 29 LAW & SOC. INQUIRY 127, 127 (2004).
43. Devins, supra note 2, at 763-64. For additional discussion, see infra note 72.
44. For discussions of majority party control of hearings (including the tendency of the majority party to call witnesses to support predefined party messages),
45. Devins, supra note 2, at 766-767.
46. Neal Devins, The Academic Expert Before Congress: Observations and Lessons from Bill Van Alstyne's Testimony, 54 DUKE L.J. 1525, 1542-1550 (2005).
47. The statute does include findings that the ACA in general and the individual mandate in particular "affect[] interstate commerce." Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501, 124 Stat. 119, 242 (2010) (to be codified at 42 U.S.C. § 18091). And while (as Chief Justice Roberts noted in his opinion upholding the individual mandate) "the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise," it is nonetheless telling that Congress failed to reference the sources of constitutional authority that backed up the statute. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2598 (2012) (quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)) (internal quotation mark omitted). For further discussion, see infra note 106.
48. § 1501, 124 Stat. at 242.
49. For a discussion of the Tea Party and its attacks on the ACA, see sources cited infra note 90.
50. Zietlow, supra note 2, at 1395-1401.
51. Robert Pear, Changing Stance, Administration Now Defends Insurance Mandate as a Tax, N.Y. TIMES, July 18, 2010, at A14 (quoting President Obama).
52. For two excellent overviews of the legislative process tied to the enactment of the ACA, see Health Care Overhaul Makes History for Obama, Democratic Congress, in 2010 CQ ALMANAC 9-3-9-5 (Jan Austin ed., 66th ed. 2011), available at http://library.cqpress.com/cqalmanac/document.php?id=cqal10-1278-70363-2 371661, and Landmark Health Care Overhaul: A Long, Acrimonious Journey, in 2009 CQ ALMANAC 13-3-13-14 (Jan Austin ed., 65th ed. 2010) [hereinafter Landmark Health Care Overhaul], available at http://library.cqpress.com/cqalmanac/cqal09-1183-59550-2251513. All factual claims in this and the next two paragraphs are supported by these two articles.
53. Indeed, with the election of Republican Scott Brown to fill Edward Kennedy's Senate seat after Kennedy's August 2009 death, Senate Democrats needed to enact the bill before Brown took office so that Democratic holdover appointment Paul Kirk could vote on the bill. As a result, Reid kept the Senate in session for twenty-five consecutive days, with the final vote on the bill occurring on Christmas Eve 2009. Equally striking, to keep Nebraska Democrat Ben Nelson in the fold, moreover, Reid needed to amend the bill so that Nebraska would not have to contribute any state funds to the ACA's Medicaid expansion. See infra note 86.
54. Landmark Health Care Overhaul, supra note 32. No doubt, party leaders in less polarized Congresses have also tweaked legislation in order to cobble together a majority. At the same time, the fact that neither Reid nor Pelosi could reach out to Republican members is a hallmark of party polarization. When Congress enacted the 1964 Civil Rights Act, for example, Democratic leadership worked together with Republican leadership, knowing that Southern Democrats stood together to block the legislation.
55. Hugh Davis Graham, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY 1960-1972, at 132-149 (1990).
56. Likewise, congressional committees were more likely to consider the factual suppositions of legislation when Congress was less polarized, including the question of whether Congress's commerce power supported the enactment of legislation. See id. at 87-95.
57. My research assistant Brian Kelley prepared a memo listing each of these hearings, including an analysis of Congress's pursuit of constitutional issues in these hearings. His findings are summarized in Memorandum from Brian Kelley, Research Assistant, to author 22-29 (Aug. 4, 2011) (on file with the Northwestern University Law Review).
58. Roundtable Discussions on Comprehensive Health Care Reform: Hearings Before the S. Comm. on Fin., 111th Cong. (2009) [hereinafter Roundtable Discussions]. Outside of hearings on health care legislation, the only other reference in Senate hearings to the constitutionality of the ACA was a questionnaire submitted by Senator Tom Coburn (R-Okla.) to Health and Human Services nominee Kathleen Sebelius on whether Congress had constitutional authority to enact the individual mandate. In her written response, Sebelius expressed support for the bill without addressing the constitutional question.
59. Nomination of Governor Kathleen Sebelius: Hearing Before the S. Comm. on Health, Educ., Labor & Pensions, 111th Cong. 92 (2009).
60. Roundtable Discussions, supra note 36, at 137 (statement of Edward Kleinbard, Chief of Staff, Joint Comm. on Taxation).
61. Between You and Your Doctor: The Bureaucracy of Private Health Insurance-Day 1: Hearing Before the Subcomm. on Domestic Policy of the H. Comm. on Oversight & Gov't Reform, 111th Cong. 139-40 (2009) (statement of Michael F. Cannon, Director of Health Policy Studies, Cato Institute).
62. On the question of whether the Act's Medicaid extension was noncoercive, a search of hearings and reports connected with Pub. L. No. 111-148 for [coer!] in ProQuest Congressional did not return any results relating to the ACA's Medicaid provisions being coercive; the only mentions of coercion had to do with coercion of seniors by caretakers and aggressive marketers for Private Fee for Service (PFFS) plans.
63. Sixty individual hearings were examined. (The transcripts of some hearings were not available on any of the major databases.) In other words, while our research is fairly comprehensive, there may be some limitations resulting from data availability. The research is summarized in Memorandum from Sam Mann, Research Assistant, to author (Nov. 2011) (on file with the Northwestern University Law Review). All factual assertions in this paragraph are drawn from this memo.
64. One witness alluded to the Constitution when discussing the feasibility of a plan that included the individual mandate. Dr. James Mongan, in testimony discussing Massachusetts's experience with an individual mandate program, said the individual mandate was "tricky" business because "there are some on the right who attack it because they do not even want to mandate motorcycle helmets, let alone premium payments." Charting a Course for Health Care Reform: Moving Toward Universal Coverage: Hearing Before the S. Comm. on Fin., 110th Cong. 30 (2007) (testimony of James J. Mongan, President and Chief Executive Officer, Partners HealthCare).
65. This is to be expected, given the power of the health insurers lobby and other economic interests impacted by the ACA. At the same time, Congress's failure to consider at all the Act's constitutional underpinnings is striking and highly suggestive of congressional disinterest in the Constitution. In particular, lawmakers could have asked witnesses to testify about the impact of the uninsured on the national health care marketplace. This testimony could have been useful to Department of Justice lawyers defending the statute. Moreover, there is no reason to think that calling such witnesses would come at a cost to majority lawmakers. Even if minority lawmakers questioned their analyses, these witnesses-so long as their fact-finding was methodologically sound-should have been able to respond to such questioning.
66. See America's Need for Health Reform: Hearing Before the Subcomm. on Health of the H. Comm. on Energy and Commerce, 110th Cong. 34, 49 (2008) (statement of Stephen T. Parente, Director, Medical Industry Leadership Institute, and Associate Professor of Finance, Carlson School of Management).
67. See Health Care Reform: Recommendations to Improve Coordination of Federal and State Initiatives: Hearing Before the Subcomm. on Health, Emp't, Labor & Pensions of the H. Comm. On Educ. & Labor, 110th Cong. 46 (2007) (statement of Steven Goldman, Comm'r, New Jersey Department of Banking and Insurance); Roundtable Discussions, supra note 36, at 542 (statement of Scott Serota, President and Chief Executive Officer, Blue Cross and Blue Shield Association).
68. Moreover, there is no reason to think this failure was at all calculated as an effort to steer clear of a politically volatile issue. For reasons noted supra note 42, majority lawmakers could have pursued this question with little or no political risk.
69. Committee reports were identified through two separate searches, a LexisNexis Search and a Lexis/ProQuest Congressional search. Some reports were listed in one search but not the other, and the analysis in this paragraph considers all potentially relevant reports, even if one or the other search did not list a particular report. In other words, if anything, I overstate congressional committee references to the Constitution. For additional discussion from which this paragraph is drawn, see E-mail from Frederick W. Dingledy, Reference Librarian, to author (Dec. 12, 2011, 4:55 PM) (on file with the Northwestern University Law Review), and Kelley, supra note 35.
70. John V. Sullivan, Constitution, Jefferson's Manual, And Rules Of The House Of Representatives Of The United States One Hundred Eleventh Congress, H.R. DOC. NO. 110-162, at 626 (2009) (House Rule XIII, cl. 3(d)(1)).
71. All five reference the Commerce Clause, three reference the Necessary and Proper Clause, and two reference Congress's taxing power under the Sixteenth Amendment.
72. Information in this paragraph is drawn from Mann, supra note 40.
73. S. COMM. ON FIN., AMERICA'S HEALTHY FUTURE ACT OF 2009, S. REP. NO. 111-89, at 2 (2009).
74. In the same report, the Senate Finance Committee references the "hidden health tax," where health premiums are increased in order to mitigate the "estimated RAJ56 billion annually in uncompensated care to people without health insurance." Id.
75. Landmark Health Care Overhaul, supra note 32.
76. Devins, supra note 2, at 746-747
77. Noting a decline in constitutional hearings irrespective of which party is in the majority)
78. id. at 766-67 (noting that, in today's polarized Congress, constitutional objections to the majority party's legislative initiatives are made by minority party lawmakers).
79. Information in this paragraph is drawn from Kelley, supra note 35; Mann, supra note 40
80. Entries refer to headings in the Congressional Record. Most entries feature comments by only one member, but some entries feature statements by several members
81. Separate searches for the terms "marketplace," "unavoidable," and "voluntary" only turned up a handful of lawmaker comments regarding the idea of a national marketplace for health insurance. See Mann, supra note 40.
82. See 156 CONG. REC. H1856 (daily ed. Mar. 21, 2010) (statement of Rep. Deal); 155 CONG. REC. S 13,718 (daily ed. Dec. 22, 2009) (statement of Sen. Hutchison).
83. See 155 CONG. REC. S13,751 (daily ed. Dec 22, 2009) (statement of Sen. Leahy). In its Supreme Court brief, the Department of Justice suggested that the taxing power was subject to congressional debate, noting that "congressional leaders defended the provision as an exercise of the taxing power." Brief for Petitioners (Minimum Coverage Provision) at 58, Dep't of Health & Human Servs. v. Florida, No. 11-398 (U.S. Jan. 6, 2010), 2012 WL 37168, at*58. With the exception of Senator Leahy, however, no member did more than mention the taxing power without meaningful elaboration. See Memorandum from Amber Shepherd, Research Assistant, to author (July 2, 2012) (on file with the Northwestern University Law Review).
84. See 156 CONG. REC. H177-83 (daily ed. Jan. 19, 2010) (statements of Reps. Garrett, Foxx, Broun, Gohmert, and Bishop); 155 CONG. REC. S13,821-29 (daily ed. Dec. 23, 2009) (statements ofSens. Hutchison, Ensign, Hatch, and Kyl); 155 CONG. REC. H12,429 (daily ed. Nov. 5, 2009) (statement of Rep. Poe).
85. As noted earlier, legislative debates of the ACA took up 790 pages in the Congressional Record, nearly all of which focused on policy-not constitutional-issues.
86. The 2011 hearings about the constitutionality of the ACA were also tied to 2010 federal district court rulings that the ACA was unconstitutional. See infra notes 94-96 (discussing the role of these federal court rulings in the 2011 Senate Judiciary Committee hearings on the ACA's constitutionality).
87. See House Republicans Want All Bills to Cite Constitutional Authority, FOXNEWS.COM (Sept. 17, 2010), http://www.foxnews.com/politics/2010/09/17/house-republicans-want-bills- cite-constitutional-authority/ (internal quotation mark omitted). The rise of the Tea Party as a politically powerful Republican constituency propelled these constitutional arguments and initiatives.
88. Zietlow, supra note 2, at 1395-1401
89. See infra notes 104-07 and accompanying text
90. Neal E. Devins, Appropriations Redux: A Critical Look at the Fiscal Year 1988 Continuing Resolution, 1988 DUKE L.J. 389, 400-406 (arguing that there is no "due process in lawmaking").
91. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501(a)(2), 124 Stat. 119 (2010) (to be codified at 42 U.S.C. § 18091). In its briefs defending the ACA, the Department of Justice points to these legislative findings-as well as roughly eighteen references to the national health marketplace in hearings, debates, and reports during the 110th and 111th Congresses-to assert that "the legislative record leave[s] no doubt that [the ACA's individual mandate]... is a valid exercise of the commerce power." Brief for Appellants at 25, Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), aff'd in part, rev'd in part by Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (Nos. 11-11021 & 11-11067), 2011 WL 1461593, at*25. Department of Justice lawyers deserve great credit for culling the legislative record to make as convincing a case for the ACA as possible. At the same time, the Government's brief (which intersperses academic studies along with legislative record material) is ultimately a "legislative collage" as opposed to legislative history. Its collection of legislative findings, debate statements, committee hearings, legislative memos, and academic studies makes the best case possible for the ACA but does not counter, for reasons detailed in this Part, the overwhelming evidence that lawmakers were not meaningfully engaged in constitutional analysis or constitutional fact-finding.
92. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132, 144 (1999).
93. Garrett & Vermeule, supra note 8, at 1301.
94. Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609-610 (1983).
95. PICKERILL, supra note 23, at 143-144.
96. Keith E. Whittington, Taking What They Give Us: Explaining the Court's Federalism Offensive, 51 DUKE L.J. 477 (2001).
97. Id. at 513. Whittington cites the Violence Against Women Act and the Gun Free School Zone Act as examples of "position-taking" behavior. See id.
98. Peabody, supra note 26, at 147, 151.
99. Mark Tushnet, TAKING THE CONSTITUTION AWAY FROM THE COURTS 57-65 (1999) (arguing that legislators-knowing that courts will check their errors-have little incentive to enact only constitutionally permissible statutes)
100. Neal Devins, Congress as Culprit: How Lawmakers Spurred On the Court's Anti-Congress Crusade, 51 DUKE L.J. 435, 440-447 (2001) (highlighting various ways that Congress signals to the Supreme Court that it embraces judicial supremacy).
101. William Marshall, American Political Culture and the Failures of Process Federalism, 22 HARV. J.L. & PUB. POL'Y 139 (1998).
102. McGinnis & Somin, supra note 8.
103. Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 DUKE L.J. 1169, 1194-1200 (2001)
104. Neal Devins, The Federalism-Rights Nexus: Explaining Why Senate Democrats Can Tolerate Rehnquist Court Decision Making but Not the Rehnquist Court, 73 U. COLO. L. REV. 1307, 1318-1324 (2002)
105. Devins, supra note 8. Examples for the balance of this paragraph are drawn from id. at 134-37.
106. Eugene D. Genovese, Getting States' Rights Right, ATLANTIC (March 2001), http://www.theatlantic.com/magazine/archive/2001/03/getting-states-right s-right/302133/.
107. Neal Devins, How Congress Paved the Way for the Rehnquist Court's Federalism Revival: Lessons from the Federal Partial Birth Abortion Ban, 21 ST. JOHN'S J. LEGAL COMMENT. 461, 465-468 (2007).
108. Specifically, the federalism issue had been raised in 1995 hearings, in law review articles, and in opinion pieces published by the Washington Post and the National Review. Nevertheless, with the exception of Senator Diane Feinstein (D-Cal.) and Representative Ron Paul (R-Tex.), lawmakers did not consider the law's federalism implications when enacting it. See id. at 466. The House Committee Report does include a brief discussion of Congress's Commerce Clause authority, although dissenting Democrats made no mention of the Commerce Clause in their "dissenting views." See H.R. REP. NO. 108-58, at 23-26 (2003). Moreover, with the exception of one passing reference to the federalism issue, committee hearings ignore the Commerce Clause issue.
109. Devins, supra note 77, at 466-67.
110. See supra notes 52-58 and accompanying text.
111. See supra notes 58-59.
112. Koppelman, supra note 5.
113. Id. It is unclear whether Congress was on notice with respect to Spending Clause objections. This was essentially a nonissue in the press and among academic commentators; moreover, as noted above, only two lawmakers made any reference to it in legislative debates. See supra note 55. Moreover, the Supreme Court had never ruled that an exercise of the Spending Clause was unconstitutional because it was unduly coercive. See Aziz Huq, In the Healthcare Decision, a Hidden Threat?, NATION (June 29, 2012), http://www.thenation.com/article/168677/healthcare-decision-hidden-threa t# (suggesting that Spending Clause ruling was unprecedented and unexpected). At the same time, the Court had put Congress on notice that "in some circumstances the financial inducement offered by Congress might be so coercive as to... [be] unconstitutional." South Dakota v. Dole, 483 U.S. 203, 211 (1987); see also supra notes 39, 56 (noting no congressional fact-finding on the coercion issue); infra note 101 (discussing Court's Spending Clause ruling).
114. Koppelman, supra note 5 (contending that "[t]he first sustained legal argument" against the ACA was published in December 2009).
115. This applies to the Spending Clause as well as the Commerce Clause. For example, Congress made no effort to find facts that the Medicaid condition was noncoercive. See supra notes 39, 42, 56; see also supra note 41 (noting that Commerce Clause fact-finding could be pursued at no political cost to Democrats).
116. See Klein, supra note 6 (noting these and other factors)
117. Jack M. Balkin, From off theWall to on the Wall: How the Mandate Challenge Went Mainstream, ATLANTIC (June 4, 2012, 2:55 PM), http://www.theatlantic.com/national/archive/2012/06/from-off-the-wall-to -on-the-wall-how-themandate-challenge-went-mainstream/258040/ (highlighting the import of unified Republican opposition to the bill, including the litigation challenge by Republican attorneys general).
118. See supra notes 31-33 and accompanying text (discussing steps that Speaker Pelosi and Majority Leader Reid took to keep the Democratic coalition intact)
119. Chris Frates, Ben Nelson's Medicaid Deal, POLITICO (Dec. 19, 2009, 9:53 AM), http://www.politico.com/livepulse/1209/Ben_Nelsons_Medicaid_deal.html
120. Noting that Democratic leaders-in order to keep Nebraska Senator Ben Nelson as part of their coalition-modified the bill so that the federal government would pay for Nebraska's Medicaid costs under the ACA
121. JENNIFER STAMAN & CYNTHIA BROUGHER, CONG. RESEARCH SERV., REQUIRING INDIVIDUALS TO OBTAIN HEALTH INSURANCE: A CONSTITUTIONAL ANALYSIS (2009) [hereinafter CRS REPORT]
122. David B. Rivkin Jr. & Lee A. Casey, Illegal Health Reform, WASH. POST, Aug. 22, 2009, at A15;
123. Healthcare: Is "Mandatory Insurance" Unconstitutional?, POLITICO (Sept. 18, 2009), http://www.politico.com/arena/archive/healthcare-reform-constitutionalit y.html.
124. Andrew P. Napolitano, Health-Care Reform and the Constitution, WALL ST. J. (Sept. 15, 2009, 8:57 AM), http://online.wsj.com/article/SB1000142405297020391730457441279340638654 8.html.
125. Rivkin & Casey, supra note 87.
126. Koppelman, supra note 5 (quoting a July 10, 2009 Federalist Society paper by Peter Urbanowicz and Dennis G. Smith).
127. John Fritze et al., The Health Care Bill's 8 Key Moments, USA TODAY (Mar. 25, 2010, 11:28 PM), http://www.usatoday.com/news/washington/2010-03-25-health-care-moments_N .htm.
128. For a discussion of Tea Party efforts to link their opposition to the ACA and other governmental programs with their vision of constitutional federalism,
129. Ilya Somin, The Tea Party Movement and Popular Constitutionalism, 105 NW. U. L. REV. COLLOQUY 300 (2011)
130. Zietlow, supra note 2, at 1367-1368, 1395-1397
131. Jill Lepore, The Commandments: The Constitution and Its Worshippers, NEW YORKER (Jan. 17, 2011), http://www.newyorker.com/arts/critics/atlarge/2011/01/17/110117crat_atla rge_lepore.
132. Adam J. White, The Tea Party's Constitution, WKLY. STANDARD (Aug. 29, 2011), http://www.weeklystandard.com/articles/tea-party-s-constitution_590449.h tml.
133. Some have argued that congressional Democrats should have known about this argument before proposing the individual mandate. Specifically, when the Clinton White House proposed a requirement that all businesses provide health insurance, the Wall Street Journal published an op-ed by David Rivkin and Lee Casey arguing that such a mandate impermissibly forced people who were doing nothing to act.
134. James B. Stewart, How Broccoli Landed on Supreme Court Menu, N.Y. TIMES, June 14, 2012, at A1 (late edition).
135. At the same time, I do not think Congress should be expected to know about arguments that were made sixteen years earlier
136. See supra notes 39-45 and accompanying text
137. See supra notes 58-59
138. In addition to the two hearings explicitly about the constitutionality of the ACA, there were mentions of the ACA's constitutionality in twenty other hearings from March 26, 2010, to December 31, 2011. This number was based on a search of the LEXIS CQ Transcription database and the Federal News Service database. See Dingledy, supra note 46. During this same period, a search of the Congressional Record resulted in 220 hits. The search was: "(affordable care act and (constitution! Or unconstitution!) and section (house or senate and not digest))." For additional discussion of the specific questions asked in hearings and statements made on the floor of Congress, see Memorandum from Brian Kelley, Research Assistant, to author (Aug. 18, 2011) (on file with the Northwestern University Law Review). Finally, Democratic leadership (in both the House and Senate, including leaders of committees of relevant jurisdiction) and more than one hundred Republicans joined one or more of several amicus briefs on the constitutionality of the ACA before the federal courts of appeal. See id.
139. See Balkin, supra note 85; Klein, supra note 6
140. There is good reason to think that House and Senate Judiciary Committee members wanted to hold hearings on the ACA's constitutionality, for these committees are dominated by policy-oriented lawyers personally interested in constitutional questions. Devins, supra note 2, at 778-79. On the House side, the Republican takeover of the House also fueled such hearings (so that the Republican party could beat its drum regarding the constitutionality of the ACA). See supra notes 60-61.
141. The title of this Part is drawn from Devins, supra note 8. The second paragraph of this Part is drawn from id. at 136-37.
142. For additional discussion, see infra notes 105-06.
143. See McGinnis & Somin, supra note 8
144. Whittington, supra note 69, at 509-518
145. An example of a fact-dependent standard is the "affecting commerce" standard that the Court deployed in the 1937 decision, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 6 (1937). An example of a boundary-control rule is the requirement that Congress's commerce power is limited to economic activity, that is, "the instrumentalities, channels, or goods involved in interstate commerce." United States v. Morrison, 529 U.S. 598, 618 (2000).
146. Devins, supra note 75, at 1198-1200.
147. It is less certain whether Congress could insulate factual assertions about whether conditions on federal spending are coercive. For the Commerce Clause, questions about whether activities, for example, do "affect interstate commerce" seem nationwide in scope and, as such, best answered by the national legislature. On the other hand, questions about coercion are arguably best answered by the states subject to the choice of whether to accept or forego conditions on federal funds.
148. James B. Stewart, An Important New Limit on the Commerce Clause, N.Y. TIMES (June 28, 2012, 2:16 PM), http://thecaucus.blogs.nytimes.com/2012/06/28/an-important-new-limit-on- thecommerce-clause/.
149. For a variety of reasons, there is some question as to whether the opinions of these five Justices constitute a binding precedent on Congress's commerce power.
150. Walter Dellinger, Supreme Court Year in Review-Entry 15: Why This Is Now Chief Justice Roberts' Court, SLATE (June 28, 2012, 1:13 PM), http://www.slate.com/articles/news_and_politics/the_breakfast_table/feat ures/2012/_supreme_court_year_in_review/supreme_court_upholds_obamacare_ why_this_is_now_roberts_court_.html (noting that there was no opinion in which five Justices joined)
151. William A. Jacobson, What If That Huge Conservative Doctrinal Achievement Was Mere Dicta?, LEGAL INSURRECTION (June 29, 2012, 4:36 PM), http://legalinsurrection.com/2012/06/what-if-that-huge-conservative-doct rinalachievement-was-mere-dicta/ (noting that the Commerce Clause holding was not essential to Chief Justice Roberts's opinion).
152. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2644 (2012) (Scalia, J., dissenting); id. at 2587 (majority opinion).
153. See sources cited supra note 44
154. This type of finding would correspond to Justice Scalia's invocation of the Necessary and Proper Clause in a 2005 ruling upholding a federal ban on medical marijuana in Gonzales v. Raich, 545 U.S. 1, 36 (2005) (Scalia, J., concurring). For a discussion of the link between Justice Scalia's Raich concurrence and the ACA, see CRS REPORT, supra note 87, at 8 & n.41.
155. Congress, as Chief Justice Roberts noted in his opinion, is under no formal obligation to cite these powers. See supra note 28. At the same time, it cannot help a bill's chances when its defenders-academic amici and the Department of Justice-must invest substantial effort in explaining why, for example, "[t]he Taxation Clause does not require Congress to use any particular labels or expressly invoke the taxation power." Brief of Constitutional Law Professors as Amici Curiae in Support of Defendant-Appellant at 16, U.S. Dep't of Health & Human Servs. v. Florida, 648 F.3d 1235 (11th Cir. 2011), aff'd in part, rev'd in part by NFIB, 132 S. Ct. 2566 (Nos. 11-11021), 2011 WL 1461597, at*16.
156. I think both that the uninsured participate in the national health marketplace and that it is "necessary and proper" to impose costs on the uninsured as part of a national regulatory insurance scheme that requires insurance companies to provide coverage to individuals with preexisting conditions. From my vantage, the constitutional objection to the individual mandate is much more about the liberty interest "not to participate" than about the Commerce Clause. For this very reason, I signed a brief supporting the individual mandate as an exercise of Congress's commerce power. See Brief of Law Professors Barry Friedman, Matthew Adler, et al., as Amici Curiae in Support of Petitioners and Reversal on the Minimum-Coverage Provision Issue, U.S. Dep't of Health & Human Servs. v. Florida, No. 11-398 (U.S. Jan. 13, 2012), 2012 WL 160237. Moreover, the Court could have imposed a somewhat different boundary on the Commerce Clause-allowing Congress to create incentives to participate in one or another market but rejecting the idea that Congress could compel mandatory participation. This suggestion was advanced by Walter Dellinger as a way for the Court to place limits on Congress while upholding the mandate under the commerce power.
157. Walter Dellinger, Supreme Court Year in Review-Entry 1: Could the Court's Conservatives Split the Difference on Obamacare?, SLATE (June 22, 2012, 11:28 AM), http://www.slate.com/articles/news_and_politics/the_breakfast_table/feat ures/2012/_supreme_court_year_in_review/supreme_court_year_in_review_awa iting_a_decision_on_obamacare_.html.