Thursday, September 2, 2010

Introduction to an article

I'm currently working on an academic article encapsulating the discussions here so far, tentatively titled "Federalism and Health Care Reform: Understanding the States' Challenges to the Affordable Care Act." I thought it possible some readers might be interested. And (selfishly) I even thought it possible that someone might be willing to offer me some constructive feedback (at

So here is a draft of the introduction. And if you have any thoughts, please send them my way. Thanks!


On March 23, 2010, President Obama signed into law Public Law 111–148, better known as the Patient Protection and Affordable Care Act (or the ACA).1  Whatever its merits as a matter of policy, it was a historic legislative achievement.  No prior administration had successfully pushed national health reform through Congress, despite several attempts, and Obama had largely staked his presidency on the legislation’s passage.  Understandably, the mood in the Rose Garden at the Act’s signing ceremony was festive, even raucous.

Not all Americans were as excited as the President.  Within hours, the attorney general of Virginia filed suit in federal court claiming that the ACA is unconstitutional.  The attorneys general of twelve other states (since joined by seven more) filed a similar action that same day, also contending that the ACA is unconstitutional.  Both lawsuits are currently winding their way through the lower federal courts, and one or both seem likely to reach the Supreme Court.

The two lawsuits make a variety of constitutional claims.  Some involve the structural principles of federalism: they argue that, by forcing the states to take certain actions—most notably, to establish insurance exchanges, provide a certain level of health coverage for their employees, and substantially expand their Medicaid programs—the ACA unconstitutionally infringes on the independent sovereignty of the states.  Other claims concern the Act’s so-called “minimum coverage provision,” which requires all persons legally residing in the United States (with some exceptions) to acquire minimally adequate health insurance by 2014.  The states contend that this individual mandate violates the Due Process Clause of the Fifth Amendment, exceeds Congress’s enumerated powers, and represents an unapportioned “direct tax” (in violation of Article I, sections 2 and 9 of the Constitution).

Several of these claims have little chance of success on the merits; unless the Supreme Court decides to overrule well-established precedent, governing law poses too much of a barrier.  But two of the states’ claims seem to have some legs.  First, the states can plausibly argue that the ACA’s amendments to Medicaid—and specifically, its requirement that the states expand eligibility to all legal residents under age 65 earning up to 133 percent of the federal poverty level—effectively “commandeer” them to implement a federal legislative program.  The significance of federal Medicaid funding to the states’ respective budgets means they have little practical choice but to implement the ACA’s Medicaid directives.  And the Constitution forbids Congress from forcing the states to govern their citizens according to the federal government’s instructions.

Second, current law might well be understood as dictating that the minimum coverage provision (ACA §1501) exceeds Congress’s powers to regulate interstate commerce or to impose federal taxes.  The “penalty” imposed by the ACA on those persons failing to acquire qualifying coverage may not constitute a genuine “tax” in the constitutional sense, but instead a sanction for violating a regulation.  And Congress’s regulation of the failure to obtain health insurance—an omission that arguably amounts to no more than passive inaction—may exceed Congress’s authority to regulate activities substantially affecting interstate commerce.

To be clear, these may not be the best understandings of current law.  But they are sufficiently plausible to form the basis for a judicial decision declaring significant parts of the ACA—and perhaps the entire Act, if the invalid provisions are not severable—unconstitutional.

In the end, what really matters is whether five justices of the Supreme Court would find these arguments convincing.  And several factors critical to that question will not be knowable until the case reaches the Court.  Those include which party controls Congress, who occupies the White House, the popularity of health care reform with the American public, and the degree to which the Act has already been implemented, which could create significant practical obstacles to effecting a judicial invalidation.  But based on what we do know now, chances seem to favor the Court’s upholding the Act. 

Why? With respect to states’ commandeering claim, the broader implications of invalidating the ACA’s Medicaid provisions are likely too severe for the justices to countenance.  As I will attempt to explain, accepting the states’ theory of “commandeering” as applied to federal spending conditions like those in the ACA would profoundly disrupt existing law, and thus create a host of headaches for the Court in its ongoing management of constitutional doctrine.  This price is probably too steep.  And with respect to the minimum coverage requirement, the Roberts Court seems considerably less interested than the Rehnquist Court in policing the breadth of Congress’s legislative authority vis-à-vis the states.  Tellingly, Chief Justice Roberts, in an important case last term, embraced an expansive understanding of what legislative means are “appropriate” for Congress to employ in its pursuit of its enumerated powers.  And this broad, nationalist view of the Necessary and Proper Clause is more than capacious enough to uphold §1501.

This article proceeds in two parts.  Part I explains the states’ various constitutional claims, distinguishing those arguments that are legally viable from those that, at least under present law, are not.  Part II explores the implications of the states’ stronger claims, and it assesses the likelihood that the Roberts Court will ultimately find them sufficiently convincing to invalidate the ACA.