PARTY POLARIZATION AND JUDICIAL REVIEW: LESSONS FROM THE AFFORDABLE CARE ACT[dagger]
Devins, Neal, Northwestern University Law Review
ABSTRACT-Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress's indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in "public goods" like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress's interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority party to raise constitutional objections to legislation. Third, there is no federalism constituency in Congress that pushes lawmakers to take federalism into account when enacting legislation. For this very reason, Republican lawmakers almost always attacked the ACA on policy, rather than on constitutional, grounds. While embracing these three explanations, this Essay rejects a fourth explanation, namely, that lawmakers had no reason to know that the ACA would be subject to vigorous constitutional attack. Finally, this Essay argues that congressional disinterest in constitutional federalism supports the Supreme Court's establishment of boundaries that limit Congress's Commerce Clause power. At the same time, this Essay does not endorse the action- inaction distinction advanced by five Justices in the ACA decision.
When enacting the Patient Protection and Affordable Care Act (ACA),1 the 111th Congress paid scant attention to possible constitutional challenges to their signature achievement. No constitutional hearings were held, committee reports did not discuss the Act's constitutionality, and legislative debates largely ignored constitutional objections to the Act.2 Why did lawmakers seemingly drop this ball?
In the lead-up to National Federation of Independent Business v. Sebelius (NFIB),3 various theories were launched and various culprits identified. Writing in the Wall Street Journal, Michael McConnell argued that "[t]he drafters and defenders of the health-care law have only themselves to blame for this mess . . . [as] they did not take seriously their obligation to" interpret the Constitution and act within its bounds.4 In a vigorous defense of congressional Democrats that appeared in Salon, Andrew Koppelman claimed that the bill's supposed constitutional shortcomings "could not have been anticipated because they did not exist while the bill was being written."5 In both The New Yorker and The New York Times, news analyses placed responsibility on a confluence of factors-the fact that "liberal [legal] academics" thought the constitutional issue a nonstarter, the failure of the Republican lawmakers and media outlets to question the bill's constitutionality, and the related failure of media outlets to run stories about potential legal challenges to the statute.6
In earlier writings that have appeared in the Northwestern University Law Review and Northwestern University Law Review Colloquy,7 I have argued that party polarization contributes to congressional disinterest in the Constitution and that the ACA is a classic case study of the pernicious effects of polarization on congressional interest in constitutional questions. In the pages that follow, I will recap and extend that argument. Specifically, after discussing party polarization's impact on constitutional deliberations and the corresponding failure of Congress to take the Constitution seriously when enacting the ACA, I will consider alternative explanations for Congress's failure to take the Constitution into account when enacting the legislation. I will embrace two supplemental explanations-Congress's general disinterest in "public goods" like constitutional interpretation and the absence of a federalism constituency in Congress. …