American Journal of Law & Medicine

The PPACA in Wonderland

I. INTRODUCTION

On August 22, 2009, when then-Speaker of the House Nancy Pelosi was asked by a reporter whether the Patient Protection and Affordable Care Act (PPACA) (1) was constitutional, she answered: "Are you serious? Are you serious?" (2) Two years later, many federal judges, more than half of the States, and a flood of distinguished constitutional scholars have examined the PPACA and found at least part of it to be unconstitutional. The question was indeed serious.

It remains serious today, as a Supreme Court decision on the constitutionality of the PPACA is expected in June 2012. Because the legality of the PPACA has emerged as perhaps the most publicly visible constitutional question since Roe v. Wade, clarity is vital not only for the PPACA itself, but also for general public understanding of the Constitution. Accordingly, our goals in this Article are to provide an opinionated but hopefully fair-minded guide to the constitutional issues of the PPACA and to clarify some misunderstandings that plague both popular and professional discussions of the issues. We believe that important portions of the Act are unconstitutional, and we will briefly make that case in this Article, but our primary task here is to promote clear and intelligible discussion rather than to persuade. Regardless of how the Supreme Court cases come out, the constitutional controversies highlighted in the current cases will remain the subjects of continuing debate.

Part II of this Article explores some of the different meanings of the word "unconstitutional" in legal, scholarly, and popular discourse. This lengthy digression is essential if one is to understand the course of discussion--whether legal, academic, or popular--about the "constitutionality" of the PPACA.

Part III of this Article looks very briefly at the complexities that come from discussing the "constitutionality" of a lengthy statute like the PPACA, with literally hundreds of separate provisions. In this short discussion, we merely raise rather than resolve the problems that arise in this context.

In Part IV, we make a case that the individual mandate in the PPACA is not constitutionally authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause. According to the original meaning of the Constitution, Congress acted without legal authority when it enacted the individual mandate. We express no view on whether the Supreme Court will find the Act unconstitutional, for the Supreme Court often deviates from original meaning. If we were capable of accurately predicting Supreme Court outcomes, we would both probably have other jobs that would make us fabulously wealthy.

II. HUMPTY DUMPTY: "THE" MEANING OF "THE CONSTITUTION"

When somebody proclaims an action "unconstitutional," what do they mean? There is no single answer to that question; different people mean different things, and sometimes the same people mean different things at different times. (3) It is difficult to have intelligent and productive conversations about constitutionality when the participants in those conversations are using the word "unconstitutionality" in differing, ill-defined, and/or equivocal ways--which is one big reason why so much constitutional discourse is unintelligent and unproductive. (4)

Without undertaking an exhaustive linguistic analysis of the word "unconstitutional," we can identify at least five families of meanings that people might attach to that term:

(1) inconsistent with the text of the Constitution,

(2) inconsistent with social understandings about what the Constitution means,

(3) inconsistent with statements that various people (especially, Supreme Court Justices) have made about or in the name of the Constitution,

(4) inconsistent with predictions about what various people (especially, Supreme Court Justices) are likely in the future to say about or in the name of the Constitution, and

(5) inconsistent with certain policy or other personal preferences of the speaker.

A. TEXT

These are families of meanings, for there are innumerable variations within each family. Definition (1), for example, says nothing about how the meaning of the Constitution's text is to be determined. Sometimes, the text provides a clear answer under almost any plausible way of determining meaning. For example, the President must be at least thirty-five years old. (5) Very often, though, understanding the text requires that one go beyond the text. For example, the Second Amendment protects the right to "arms." (6) Because the text of the Second Amendment extols the militia, we can be sure that the "arms" in the Second Amendment are weapons rather than forelimbs. That step is easy, but then there is the harder step of figuring out what kinds of weapons are protected: The dictionary definition, which would be anything that is useful for offense or defense? Arms suitable for a militia use? Only weapons that can be carried by an individual (and therefore "borne" in the narrowest sense)?

So, even when we want to use definition (1) (text) we often need to consider at least some of the other definitions.

B. SOCIAL PRACTICES AND UNDERSTANDINGS

Today, most persons who think about constitutional issues agree that social understandings and practices (definition (2)) are very important, and sometimes indispensable, for interpreting the Constitution. Today, among Supreme Court Justices and most law professors, there is a consensus that the original meaning of the Constitution is very important. Some persons believe that if the original meaning provides a clear answer, then the inquiry is at an end. Other persons believe that original meaning can be trumped by long-standing historical practices, by contemporary views of the majority of the public, or by the contemporary views of a subset of the public (e.g., elite law professors).

For all of the various aspects of social practices and meaning, there are many sub-theories about how precisely to determine them. (7) Likewise, there are various theories about how to combine original meaning with "living constitutionalism." (8)

Everyone agrees that American practices and understandings are important, though there is widespread disagreement about which practices and understandings and how important they are for determining constitutional meaning. But what about the practices of other countries? In modern American politics, some persons insist that American courts should never rely on foreign precedents or law. Among judges and law professors, it appears that there is literally no one who agrees. The American legal system grew out of the English legal system. Therefore, to understand the original meaning of the American Constitution, a person must have some understanding of the British roots from which American rights and practices grew. For example, when the Supreme Court was considering the detention of enemy combatants at Guantanamo Bay, both the majority and the dissent argued at great length about what exactly were the English rules for habeas corpus at the time of the American Founding. (9) All the Justices of the Supreme Court agreed that the constitutional right of habeas corpus protects, at the very least, the right of habeas corpus as it was understood in English law when the U.S. Constitution was ratified.

There is great modern disagreement about whether foreign laws or practices, other than pre-1789 English ones, should be considered relevant to the meaning of the U.S. Constitution. If we are going to look at other countries, should we look to modern Western Europe (which would militate against the constitutionality of capital punishment) or should we look more globally (which would militate in the other direction)?

Regarding the PPACA, we can guess, based on previous Supreme Court opinions, that Justices Breyer and Ginsburg will consider the fact that healthcare systems in Western Europe are highly socialized to be very significant, and that Justices Thomas and Scalia will consider the fact to be absolutely irrelevant to the meaning of the U.S. Constitution.

C. WHAT SOME PEOPLE SAY

Sometimes, what a particular person says may simply be strong evidence of social practices or understandings. For example, newspaper essays written by James Madison during the ratification debates over the Constitution provide powerful evidence not only of what the authors of the Constitution meant, but even more importantly, as to what the People who actually ratified the Constitution understood it to mean (since they were presumably persuaded, for example, by Madison's careful explanation that the federal government created by the Constitution could be active and effective in certain specified subjects, such as national defense, and would have no power over a large mass of subjects that would remain the responsibility of the States, such as care for the poor).

Definition (3) ("what certain people say") involves something different: the view that simply because certain people say that something is (or is not) constitutional, the statement makes it so. For example, Presidents George W. Bush and Barack Obama have both said that the President has the unilateral power to put into a military prison, without trial, an American citizen who was on American soil. (10) Some Americans believe that because the American President says that indefinite imprisonment is constitutional, the imprisonment therefore is constitutional.

Of course, the epitome of special people often regarded as having the power to make something constitutional or unconstitutional just by saying so are judges, especially the Justices of the United States Supreme Court. Regardless of whether a Supreme Court opinion even bothered to seriously analyze the constitutional text or the original meaning, the fact that a Supreme Court opinion declares something to be (or not be) constitutional is, to many people, decisive. (11) The Supreme Court certainly considers its precedents to be extremely important, and, except for Justice Thomas, the Justices tend to be cautious about overruling precedents even when they believe that those prior cases were wrongly decided. …

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