Federalism

Congress Case Comment

To Tax, To Spend, To Regulate

Vol. 126 No. 1 Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA’s Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called “individual mandate”) as the conscription of the healthy to subsidize the sick. This conflict over the federal government’s proper role is, of course, not new; it has played out repeatedly over our nation’s past. But rarely since the New Deal has it surfaced in such a distinctly constitutional guise with respect to economic legislation. Instead, after the Supreme Court sustained broad congressional power seventy-plus years ago, little doubt existed that the federal government generally had constitutional authority to regulate private activity if it chose to do so. The Rehnquist Court’s reassertion of limits on congressional power under the Commerce Clause indicated that some measures may go too far. Still, the fight over the federal government’s proper role in the economic sphere has been largely political, not constitutional.
Congress Case Comment

Affordable Convergence: “Reasonable Interpretation” and the Affordable Care Act

Vol. 126 No. 1 The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . . – Joseph Story (1833) That the Court was sharply divided was not a surprise. The contrasting briefs – including a record 136 from amici – laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world.
Federalism Foreword

Federalism All the Way Down

Vol. 124 No. 1 In this Foreword, Professor Gerken argues that constitutional theories of federalism remain rooted in a sovereignty account, and they remain disconnected from the many parts of “Our Federalism” where sovereignty is not to be had. In these areas, she notes, institutional arrangements promote voice, not exit; integration, not autonomy; interdependence, not independence. Minorities do not rule separate and apart from the national system, and the power they wield is not their own. Minorities are instead part of a complex amalgam of state and local actors who administer national policy. And the power minorities wield is that of the servant, not the sovereign; the insider, not the outsider. They enjoy a muscular form of voice – the power not just to complain about national policy, but to help set it.