The Affordable Care Act, the Constitutional Meaning of Statutes, and the Emerging Doctrine of Positive Constitutional Rights

Article excerpt



     A. The Idea of a Constitution
     B. The Purposes of a Constitution
     C. The Purposes of the U.S. Constitution
        1. Strong National Government
        2. Liberty
        3. Equality

     A. The Idea of Positive Rights
     B. Statutes as Declarations of Positive Rights

     A. The PPACA as a Declaration of Positive Rights
     B. Statutory Interpretations as a Response to
        Criticisms of Positive Rights



Why are so many people unwilling to accept the 2010 enactment of the Patient Protection and Affordable Care Act (PPACA or the Act)? (1) The obvious fact that many people do not like the law is not, by itself, an adequate explanation. (2) Most proposed laws have opponents, often determined and vociferous ones. Once the law is passed, however, its opponents tend to shift from general opposition to more particularized efforts to live with the law, minimize its impact, or undermine its effectiveness. Continued opposition to the law itself is a much rarer phenomenon.

Compare the response to the PPACA with the response to the other one-thousand page statutory behemoth that the Obama administration enacted in its first two years, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). (3) Dodd-Frank was hardly an uncontroversial piece of legislation; indeed, it gored the ox of one of the most powerful interest groups in the United States. (4) Yet it vanished from the public agenda as soon as it was enacted. (5) One can be quite certain that there are literally thousands of lawyers working assiduously on ways to preserve the practices that the Dodd-Frank Act attempted to terminate or alter, and that there are thousands of other business, law, and public relations executives lobbying the regulatory agencies for favorable treatment under the new law. But the financial services industry seems content to rely on these typical responses rather than expend its literal and figurative capital on an effort to repeal Dodd-Frank.

In contrast, the political opposition to the PPACA has been intense, not only when it was being debated, (6) but also after it was enacted into law. (7) At least twenty-six states have filed lawsuits to overturn portions of the Act, (8) and legislators in a similar number of states have proposed or incorporated amendments to their state codes that would preclude its operation. (9) Many Republican politicians made their opposition to the Act the primary focus of their campaigns in the 2010 elections, (10) and once elected, used their majority in the House of Representatives to pass an admittedly symbolic repeal bill. (11) Not content with this gesture, they have continued their animadversion against the Act, declaring that this opposition will be the focus of their 2012 campaigns as well. (12) Potential Republican nominees for President are attempting to outdo each other in their hostility to the PPACA, (13) and a major disadvantage afflicting Mitt Romney, who might otherwise be the clear front-runner, is that he is poorly positioned to oppose the PPACA because he spearheaded similar legislation as Governor of Massachusetts. (14) Perhaps most significantly, the PPACA seems to have been one of two factors that have led to the remarkably rapid development of a genuine social movement: (15) the now-notorious Tea Party. (16) The Tea Party's success, in turn, has fueled opposition to the Act. (17) Some of the Republicans who oppose the Act are undoubtedly sincere in their personal distaste for it and would oppose it in any case. But legislators who are insincere provide even more impressive evidence of the Act's unpopularity, because they are, in that case, appealing to an accurately perceived revulsion toward the Act among their constituents. …


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