Popular Constitutionalism and the Underenforcement Problem: The Case of The National Healthcare Law
POPULAR CONSTITUTIONALISM AND THE UNDERENFORCEMENT PROBLEM: THE CASE OF THE NATIONAL HEALTHCARE LAW
ERNEST A. YOUNG
For prophylactic reasons, courts may enforce a constitutional principle more
broadly than its strict meaning requires. The overbreadth doctrine in First
Amendment law, for instance, allows courts to strike down laws even though
the challenger’s speech is unprotected, simply because the law might also be
applied to protected speech.4 The effect is to allow the constitutional
prohibition to sweep more broadly than its conceptual scope—to protect,
functionally speaking, unprotected as well as protected speech.5 More often,
courts underenforce constitutional norms: As Larry Sager has explained in a
pathbreaking article, sometimes “the Court, because of institutional concerns,
has failed to enforce a provision of the Constitution to its full conceptual
boundaries.”6 Courts do this for institutional reasons rather than for analytical
ones; hence, when a constitutional norm is underenforced, its doctrinal
application simply does not exhaust the conceptual meaning of the underlying
For a variety of reasons, the judge-made doctrine that enforces
constitutional limits on national authority tends to underenforce those limits—
sometimes radically so. That underenforcement problem is at center stage in the
debate about the national healthcare law. In that debate, the “smart money” is
confident that the Patient Protection and Affordable Care Act (ACA)8 is
constitutional—that it is, in fact, an easy case. Laurence Tribe, who practically
defines the “smart money” in constitutional law, has said that “this law’s
constitutionality is open and shut.”9 Similarly, Erwin Chemerinsky’s
contribution to this conference insists that “the federal healthcare law is
constitutional. It is not even a close question.”10
4. See, e.g., United States v. Stevens, 130 S. Ct. 1577, 1593 (2010) (Alito, J., dissenting) (“Because
an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a
party to whom the law may constitutionally be applied to challenge the statute on the ground that it
violates the First Amendment rights of others.”).
5. One may also think of warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), in this
way. See, e.g., Oregon v. Elstad, 470 U.S. 298, 306 (1985) (“The Miranda exclusionary rule . . . serves
the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered
even in the absence of a Fifth Amendment violation.”).
6. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms,
91 HARV. L. REV. 1212, 1213 (1978); see also Powell, supra note 3, at 242–45.
7. Courts are not the only institutions that create a gap between the meaning of the Constitution
and their enforcement of it. For instance, the War Powers Resolution purports to be an interpretation
by Congress of the allocation of war powers between Congress and the President. But that statute
arguably both overenforces some limits on the President’s authority (for example, by applying to
Presidential actions that do not amount to an act of war) and underenforces others (by allowing the
President to initiate hostilities and continue them for sixty days without congressional approval).
Presumably these gaps have their origins in certain institutional limitations of the Congress in dealing
with crises that give rise to military action.
8. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26 and
9. Laurence Tribe, On Health Care, Justice Will Prevail, N.Y. TIMES, Feb. 7, 2011, at A27. Much
of the present author’s knowledge of constitutional law, such as it is, consists in what he learned from
Professor Tribe in law school.
10. Erwin Chemerinsky, Political Ideology and Constitutional Decision-Making: The Coming
Example of the Affordable Care Act, 75 LAW & CONTEMP. PROBS., no. 3, 2012 at 3.
These assessments, and others like them,11 rest not so much on what the
Constitution means conceptually but rather on what the Supreme Court has
said about it—particularly since 1937. That, of course, is the date of the Court’s
famous “switch in time,” in which the Court acquiesced in the development of
the national welfare state by signaling that it would no longer vigorously
enforce principles of economic liberty or limits on national power.12 Dean
Chemerinsky, for example, is careful to acknowledge that the ACA’s
constitutionality is easy “under existing doctrines.”13 He is probably correct:
Current doctrine gives contemporary lawyers good reason to be confident that
the Court will uphold the ACA because that doctrine is extremely deferential
to Congress. Federalism is, in other words, underenforced in current law, and if
that underenforcement continues, there is every reason to expect the ACA to
survive current challenges to its constitutionality.
What I want to resist in this essay, however, is any supposition that the
current underenforcement of federalism or economic liberty is somehow
natural, inevitable, or necessarily correct. To see why, consider the state of
constitutional law circa, say, 1920. At that time, Supreme Court doctrine
enforced both federalism-based limitations on national authority and due
process protections for freedom of contract much more aggressively than it does
today.14 At the same time, it is fair to say that extant doctrine underenforced the
Equal Protection Clause’s principle of racial equality,15 the Establishment
Clause’s prohibition on public sponsorship of religious messages,16 and the First
Amendment’s protection for speech critical of the government.17 Today, of
course, it would practically be unthinkable to defer to government action that
trenched on these constitutional principles—but it would have been virtually
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
unthinkable in 1920 to defer to the government on basic questions of federalism
and economic liberty. My point, of course, is that which constitutional principles
get underenforced changes over time.
The interesting question is why and how these changes occur. I argue here
that such changes have a lot to do with the notion of “thinkability” mentioned
in the last paragraph; in other words, the Court’s perception of which
institutional constraints warrant underenforcement of which constitutional
principles has a lot to do with what is going on in the broader society. One
obvious change between 1920 and today is that the public has come to accept
and even expect an extensive role for government generally—and the national
government in particular—in regulating the economy. Part of the story thus
consists in the commonplace observation that changes in public attitudes about
government tend to result in changes in constitutional doctrine.18
There is a second aspect to the story, however. That aspect focuses on public
perceptions of the status and role of the courts—particularly the U.S. Supreme
Court. Public opinion evolves not only with respect to matters of policy—for
example, the appropriate level of government regulation and social provision—
but also with respect to the role of judicial review itself. Because doctrinal
underenforcement consists in the courts’ willingness to defer constitutional
judgments to other actors, broad trends in public opinion influence not only the
weight that the courts give to other political institutions but also the confidence
with which the courts approach their own tasks. Although the Supreme Court
started out in a precarious institutional position with uncertain popular
legitimacy, over time it has solidified its role and achieved an impressive level of
“diffuse support”—that is, support that does not depend on public agreement
with the merits of particular decisions.19 To the extent that judicial review seems
accepted, respected, even desired, we can expect the Court to defer less to
Congress, the President, or state institutions on particular issues.
These observations shed some light, I hope, on the extent to which we can
expect the current underenforcement of federalism-based limitations on
national power (and perhaps even of economic liberties under the Due Process
Clause) to change. Broad trends in public opinion—including but not limited to
the Tea Party movement in current politics—have questioned the national
regulatory state. At the same time, state governments, which were once
identified with ineffectual efforts to ameliorate the Depression and the
oppression of African Americans, now enjoy a resurgence in public confidence.
And the Court itself has recovered its self-confidence and prestige since the
nadir of court-packing and now enjoys a reputation not only as the primary
18. See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS
INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 5–12 (2009)
(documenting the shift during the New Deal period in public expectations of government); id. at 14
(concluding that “over time, as Americans have the opportunity to think through constitutional issues,
Supreme Court decisions tend to converge with the considered judgment of the American people”).
19. See id. at 12–16.
guardian of our liberties but as an important arbiter of government structure as
well. It is not inconceivable—although perhaps not yet likely—that the
confluence of these tendencies will cause the Court to reconsider the
underenforcement of federalism.
Part II of this essay examines the constitutional case against the ACA, as
well as the extent to which the weakness of that case may be attributed to the
underenforcement of the relevant constitutional principles. Part III then
considers the theory of doctrinal underenforcement and its historical
contingency. Finally, Part IV examines the relationship between
underenforcement and popular constitutionalism in the debate over the
national healthcare law.
UNDERENFORCED CONSTITUTIONAL NORMS IN THE NATIONAL
If the ACA survives constitutional challenge, it will not be because the law
is clearly consistent with constitutional norms.20 The Act’s expansion of federal
regulatory authority, its imposition of regulatory obligations upon state
governments, and its intrusion on individual freedom of choice are all
unprecedented, if not in principle then in scope or magnitude, in our history. In
other eras—not just the Founding, but the early parts of the last century as
well—those features would most likely have been seen as flatly inconsistent
with the constitutional role of government in general and the limited role of the
national government in particular. This is not to say that the ACA is clearly
unconstitutional either, but rather to say that the conceptual meaning of the
relevant constitutional concepts is contested, and in fact has been so for much
of our history. And what makes challenging the ACA an admittedly uphill
battle today is that current constitutional doctrine underenforces all of the
Legal controversy has centered primarily (although not exclusively) on the
Act’s “individual mandate,” which requires virtually every American to
purchase and maintain a minimum level of health insurance coverage.21 It is not
altogether clear whether this is because the individual mandate is the Act’s
most constitutionally vulnerable provision (it may not be), or because it is the
provision most readily understood by non-health law experts and its intrusion
on individual choice resonates most broadly with the body politic. As I will
discuss later on, the lawsuits challenging the Act should be understood not
simply as litigation seeking to achieve a particular legal result but also as
20. Cf. Randy Barnett, Commandeering the People: Why the Individual Health Insurance Mandate
is Unconstitutional, 5 N.Y.U. J. L. & LIBERTY 581, 583 (2010) (“There are three ways to analyze
whether a law is constitutional or not. Does it conflict with what the Constitution says? Does it conflict
with what the Supreme Court has said? Are there five votes for a particular result? Unless we are clear
about which sense of ‘unconstitutional’ we are using, we are likely to talk past each other.”).
21. 26 U.S.C. § 5000A(b)(1) (West 2011).
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
vehicles for articulating a particular—and perhaps divergent—conception of
constitutional meaning. In any event, I will focus here on the individual
mandate although I will have a bit to say about the Act’s conditional spending
provisions as well.
A. The Commerce Clause
The Commerce Clause restricts Congress’s regulatory authority to
“commerce . . . among the several states.”22 In Gibbons v. Ogden, John Marshall
insisted that “[t]he enumeration [of federal powers] presupposes something not
enumerated,”23 and the Tenth Amendment makes this clear by providing that
every power not granted to the national government is “reserved” to the States.
Article I thus restricts Congress’s authority along two dimensions: many
activities do not involve “commerce,”24 and not all commerce is “among the
several states.”25 And in fact for the greater part of our history, constitutional
doctrine distinguished sharply between “commerce” and other activities that do
not involve buying and selling, such as “agriculture” or “manufacturing,”26 and
between interstate and intrastate commerce.27 This model of federalism, which
relied on the Court to define and police separate and exclusive spheres of state
and national authority, was generally known as “dual federalism.”28
The courts, however, found these distinctions much more indeterminate in
practice than they might appear in theory. Economically speaking, activities like
manufacturing or consumption of goods are closely tied to the buying and
selling of them, and local markets had become closely integrated with national
and international ones by at least the early twentieth century. As the size and
responsibilities of the national government expanded in response to the
Depression, the Court found itself under increasing pressure to recognize these
realities. Although disagreement persists as to whether the Court ultimately
changed course because of these conceptual difficulties or as the result of more
overt political pressure in the form of FDR’s “court-packing” plan,29 what is
clear is that the Court ultimately abandoned this “dual federalism” regime.30
The modern doctrine abandons both of the potential limiting principles
noted above.31 It eschews any effort to confine “commerce” to buying and
selling, notwithstanding strong evidence that this was the original understanding
of the term at the Founding. Rather, commerce now includes all “economic
activity.”32 Similarly, the modern cases assume the complete integration of the
national market, having abandoned any distinction between “inter-” and
“intra“state economic activity. Congress may reach any economic activity that has a
“substantial effect” on the national economy, and the criterion is evaluated by
considering the aggregate effect of all similar activity.33 Moreover, Congress’s
judgment on that question is subject only to rational basis review.34 The result is
not only an easy standard to meet, but deference to Congress as to whether it
has been met.
This generous standard is not all. In the rare instances in which a regulated
activity is not “commercial” or “economic” in nature, Congress may
nonetheless regulate if the regulation is “necessary and proper” to a broader
scheme of commercial regulation. Hence, in Gonzales v. Raich, Justice Scalia
said that even if consumption of homegrown marijuana for medicinal purposes
did not amount to commercial activity, Congress could still regulate it because
failure to do so would make Congress’s broader effort to regulate the
recreational marijuana market more difficult to enforce.35 Necessity, moreover,
has traditionally been evaluated under the deferential standard of McCulloch v.
Maryland: “Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.”36 Again, the doctrine entails a broad
(arguing that the conventional account overlooks the critical role of doctrinal developments,
internal to the law, that made the pre-1937 jurisprudence unsustainable)
30. See Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1, 17 (1950) (observing
that, by 1950, the “entire system of constitutional interpretation” embodied in dual federalism lay “in
31. For a survey of alternate federalism models that remain viable after the demise of dual
federalism, see Ernest A. Young, The Puzzling Persistence of Dual Federalism, in NOMOS (James
Fleming & Jacob Levy eds.) (forthcoming 2012).
32. See United States v. Morrison, 529 U.S. 598, 613 (2000) (“[T]hus far in our Nation’s history our
cases have upheld Commerce Clause regulation of intrastate activity only where
that activity is economic in nature.”).
33. Wickard v. Filburn, 317 U.S. 111, 125–29 (1942).
34. United States v. Lopez, 514 U.S. 549, 557 (1995).
35. 545 U.S. 1, 34–42 (2005) (Scalia, J., concurring in the judgment).
36. 17 U.S. (4 Wheat.) 316, 421 (1819). The Court did suggest some willingness to tweak the
McCulloch standard in its most recent “necessary and proper” case, United States v. Comstock, 130 S.
Ct. 1949 (2010). That case upheld the federal civil commitment statute for mentally ill, sexually
dangerous federal prisoners as necessary and proper to the enforcement of federal criminal laws
enacted pursuant to Congress’s various enumerated powers. The majority’s careful consideration of the
commitment provision’s “necessity,” however, was hardly the rubber stamp that we have come to
expect under McCulloch. Moreover, Justice Kennedy—who might as well have a “5” tattooed on his
forehead in federalism cases—wrote separately to insist that the McCulloch standard should not be
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
substantive rule, augmented by judicial deference to the political branches on
the question whether the rule has been satisfied.37
It is hard to see how the plaintiffs can successfully challenge the ACA—or
any other federal statute—under these rules. In United States v. Lopez38 and
United States v. Morrison,39 the Rehnquist Court struck down two federal
statutes on the ground that they exceeded Congress’s commerce power. But in
each case, it was plausible to say that if those statutes fell within Congress’s
commerce authority, no conceivable statute would fall outside it. The Court was
unwilling, in other words, to read the Commerce Clause out of the Constitution
entirely. But the Court has generally been reluctant to go further and strike
important federal statutes so long as any conceivable limiting principle would
It is not clear that the ACA has this “last straw” quality that seems to have
been so essential in Lopez and Morrison. For one thing, proponents of the
ACA can always point to the Gun Free School Zones Act and the Violence
Against Women Act as federal laws that would remain unconstitutional even if
the ACA is upheld.41 But it should also be clear that the contemporary doctrine
underenforces the underlying constitutional principles at every turn. The Court
defers to the political branches on whether activity is “commerce,” whether it
takes place “among the several states,” and—in the rare case where these
capacious definitions cannot be met—whether noncommercial regulation is
nonetheless “necessary and proper.” The reasons for this deference have to do
not only with the indeterminacy of the underlying distinctions, but also with the
Court’s historical experience. The Court’s failure to defer on these questions,
after all, is precisely what brought about the painful confrontation with the
political branches in the 1930s.42 The result, however, is that very little scope
equated with the very lenient form of “rational basis” review applied in privacy cases not involving
fundamental rights. See id. at 1966–68 (Kennedy, J., concurring in the judgment); see also id. at 1970
(Alito, J., concurring in the judgment) (“Although the term ‘necessary’ does not mean ‘absolutely
necessary’ or indispensable, the term requires an ‘appropriate’ link between a power conferred by the
Constitution and the law enacted by Congress. . . . And it is an obligation of this Court to enforce
compliance with that limitation.”) (quoting McCulloch, 17 U.S. (4 Wheat.) at 415).
37. Although I have criticized aspects of this doctrine elsewhere, see, e.g., Ernest A. Young, Just
Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v Raich, 2005 SUP. CT.
REV. 1, 21–37, I have generally praised the notion that the national and state governments exercise a
largely concurrent jurisdiction, see Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the
Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139 (2001). The point is simply that current
doctrine limits national power far less strictly than dual federalism did.
38. 514 U.S. 549 (1995).
39. 529 U.S. 598 (2000).
40. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the Controlled Substances Act even
as applied to medicinal use of homegrown marijuana).
41. See, e.g., Robert D. Cooter & Neil Siegel, Collective Action Federalism: A General Theory of
Article I, Section 8, 63 STAN. L. REV. 115, 135 (2010) (suggesting that Lopez and Morrison were rightly
decided but that the ACA is more defensible than the statutes struck down in those cases).
42. See, e.g., Lopez, 514 U.S. at 604 (Souter, J., dissenting) (“The modern respect for the
competence and primacy of Congress in matters affecting commerce developed only after one of this
Court’s most chastening experiences, when it perforce repudiated an earlier and untenably expansive
remains for judicial enforcement of the underlying constitutional norms.
B. The Individual Rights Claim
At its heart, the constitutional objection to the individual mandate sounds in
individual liberty. Senator John Kyl of Arizona, for example, describes the
mandate as “a stunning assault on liberty.”43 Randy Barnett—the most
prominent legal academic critic of the individual mandate—describes the
ultimate problem with the provision as “commandeering the people.”44 “Unless
they voluntarily choose to engage in activity that is within Congress’s power to
regulate or prohibit,” he explains, “the American people retain their sovereign
power to refrain from entering into contracts with private parties.”45
A less lawyerly version of the argument lies behind the famous “broccoli
question”: “If Congress can order you to buy health insurance, why can’t it
order you to buy (and eat!) broccoli?”46 The implication is surely not that
making you eat broccoli would be OK as long as a state does it. Similarly, one
suspects that the visceral reaction to being forced to purchase health insurance
would be similar even if the mandate came from a state legislature rather than
Congress.47 The objection must therefore rest on an individual right secured
conception of judicial review in derogation of congressional commerce power.”).
43. Jeffrey Young, Kyl: Health bill a ‘stunning assault on liberty’, THE HILL, Sept. 22, 2009,
44. Barnett, supra note 20, at 581.
45. Id. at 634. This point comes at the end of a lengthy and thoughtful exegesis of more traditional
arguments under the Commerce and Taxing powers, but I think it is fair to say that this individually
based argument best captures the intuitive heart of Professor Barnett’s objection to the mandate. See
id. at 587–620.
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
against all governments.48
This ultimate grounding in individual rights explains the somewhat peculiar
character of the Commerce Clause arguments in these challenges, which focus
on a distinction between action and inaction.49 While it is true that no previous
case upholding federal legislation under the Commerce Clause has involved
inaction, as opposed to action, it is also true that none of those opinions actually
focused on the distinction. When Congress regulates action, however, it almost
always leaves the individual the option to avoid participating in the federal
obligation simply by refraining from engaging in the activity; a law requiring
affirmative conduct thus feels like more of an imposition—however much we
may pooh-pooh any action–inaction distinction as “formalistic.”50 This intuition
comes through fairly clearly in the Eleventh Circuit’s opinion striking down the
ACA under the Commerce Clause. The gist of the opinion is that if the ACA is
constitutional, then there is no meaningful limit on Congress’s power, but the
apparent reason that the ACA has this “last straw” quality is not so much the
noneconomic nature of health insurance, but rather the fact that the ACA
requires individuals to participate in an economic transaction against their will.51
The obvious constitutional home for this sort of objection is the old doctrine
of “freedom of contract”—or, more precisely, freedom not to contract. In Meyer
v. Nebraska, for example, the Court said that “liberty” in the Due Process
to locate auto insurance mandates within the general police power, which she sees as one of the
“numerous and indefinite” powers that Madison held to be reserved to the states. See id. From this
point of view, there would be no obvious objection to state laws that required individuals to purchase
health insurance, acquire firearms, or—heaven forbid—eat broccoli.
48. For an acknowledgement by one of the ACA’s defenders that at some point government
interference with individual health choices would run afoul of individual rights, see Michael Dorf, The
Federalism Objection to the Individual Mandate, DORF ON LAW (Nov. 3, 2009),
http://www.dorfonlaw.org/2009/11/federalism-objection-to-individual.html (recognizing that a
“requirement to see a doctor would come close, in my view, to violating the common law right—
assumed to be a constitutional right in the Cruzan case—to refuse medical treatment,” and that “an
order to exercise does appear to go too far”). The important point for my purposes is that these
examples differ from the individual mandate in degree, but not in kind.
49. See, e.g., Brief for Private Respondents at 32–33, Department of Health and Human Services v.
State of Florida et. al. (No. 11-398) (U.S. Feb. 6, 2012); see also FOLEY, supra note 47 at 47–50; Barnett,
supra note 20, at 604–05.
50. See, e.g., Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the
Individual Mandate, 75 LAW & CONTEMP. PROBS., no. 3, 2012, at 43 (criticizing the distinction between
inactivity and activity as “formal” and “arbitrary”); cf. DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189, 212 (1989) (Blackmun, J., dissenting) (decrying “attempts to draw a sharp and
rigid line between action and inaction” as “formalistic reasoning [that] has no place in the
interpretation of the broad and stirring Clauses of the Fourteenth Amendment”); THE BHAGAVAD
GITA AS IT IS, CHAPTER 4, TEXT 18, http://www.asitis.com/4/18.html (last visited Nov. 6, 2011) (“One
who sees inaction in action, and action in inaction, is intelligent among men.”).
51. Compare, e.g., United States v. Morrison, 529 U.S. 598, 613 (2000) (holding that
gendermotivated violence is not a commercial activity and therefore not regulable under the Commerce
Clause), with Florida v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1292–93 (
11th Cir. 2011
(“Although any decision not to purchase a good or service entails commercial consequences, this does
not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to
the Commerce Clause.”).
not merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly pursuit of happiness by free
The right to make one’s own choices about how to guard against sickness and
injury fits comfortably within this rubric.
Except, of course, that this doctrine is dead, dead, dead. The best cite for a
doctrine of freedom not to contract would be Lochner v. New York,53 and while
Lochner still has its defenders,54 the Justices of the United States Supreme
Court are not among them. The Court has generally not actually disavowed the
notion that the Constitution protects economic liberty, and the federal courts
remain open to hear claims that those liberties have been infringed.55 Meyer
itself, moreover, is still good law, although it is generally now misread as having
enforced a purely personal right.56 Even the traditional “double standard”
between economic and personal rights may well be breaking down.57 But for
now, current doctrine still reviews most economic liberty claims under a
standard so deferential as to negate any hope of a successful challenge. Once
again, contemporary doctrine at once affirms that a constitutional principle of
economic liberty exists in the Constitution but defers to political actors the
question whether that principle has been violated in any particular case.
Freedom of contract, in other words, is so underenforced that the challengers of
the ACA largely refrain from explicitly invoking it.58
C. The Spending Clause
The final avenue of challenge, which I consider only briefly in this essay,
concerns the extensive provisions of the ACA that require implementation by
state governments. States must establish “healthcare exchanges,” for example,
52. 262 U.S. 390, 399 (1923).
53. 198 U.S. 45 (1905) (striking down a New York law regulating the hours of bakers on the ground
that it unreasonably restricted the bakers’ freedom to contract).
54. See, e.g., DAVID E. BERNSTEIN, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL
RIGHTS AGAINST PROGRESSIVE REFORM (2011).
55. See, e.g., Eastern Enters. v. Apfel, 524 U.S. 498 (1998) (debating whether economic substantive
due process barred retroactive imposition of liability on employers for healthcare benefits to former
56. See, e.g., Troxel v. Granville, 530 U.S. 57, 77 (2000) (relying on Meyer, but for the narrow
proposition that the Due Process Clause protects “a parent’s interests in the nurture, upbringing,
companionship, care, and custody of children”). As the quotation accompanying note 52, supra,
indicates, Meyer located these interests within a much broader freedom of self-determination that
included economic matters like choosing an occupation and making contracts.
57. See, e.g., Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) (applying strict scrutiny under the
First Amendment to strike down an economic regulation of the sale of medical information in the
58. The challenges in the Florida litigation, for example, did not appeal the district court’s dismissal
of their substantive due process claim. See Florida ex rel. Att’y Gen. v. U.S. Dep’t of Health & Human
Servs., 648 F.3d 1235, 1292 n.93 (
11th Cir. 2011
LAW AND CONTEMPORARY PROBLEMS
that meet a variety of federal requirements, and they must also implement a
significantly expanded version of Medicaid.59 The Act does not, however, simply
mandate that States participate in this way; any such requirement would run
afoul of the anti-commandeering doctrine, which holds that Congress may not
require state legislatures or executive officials to implement a federal program.60
Rather, it conditions significant grants of federal funds on the States’
compliance with the ACA’s requirements.
As the Court has made clear, the Spending Clause limits Congress’s power
to impose such requirements. If it did not, then the national government could
use its vast resources and ability to preempt the states’ revenue base to end-run
virtually any constitutional protection for state sovereignty.61 Contemporary
doctrine thus holds that conditions on the states’ receipt of federal funds must
(1) promote the general welfare, (2) be clearly stated, (3) be “germane” to the
purpose of the underlying federal funding, (4) not require the recipient to take
action that would be unconstitutional for it to take, and (5) leave the states an
actual choice as to whether or not to accept the funds—that is, not be coercive.62
The Spending Clause challenge to the ACA relies primarily on this fifth and last
prong of the Dole test—that is, it argues that the amounts of money at stake are
so large that the states have no real alternative to participating in the national
The problem, of course, is that this constraint is also an underenforced
constitutional norm. The Supreme Court has found a federally-imposed
condition unconstitutionally coercive exactly once: The federal Low-Level
Radioactive Waste Policy Amendments Act of 1985 invited state governments
to legislate in various ways to provide for disposal of radioactive wastes; if they
did not, the ultimate sanction was that a State would have to “take title” to the
wastes generated within its borders, thereby incurring any liability for the
impacts of unsafe disposal.64 The Court determined that the choice whether to
legislate according to federal requirements or “take title” to all the radioactive
waste was not a real choice at all; the condition, in other words, was coercive
and therefore had to be treated as an outright requirement (which was
unconstitutional because it “commandeered” the state legislature).65 But the
“take title” provision invalidated in New York is so unusual as to virtually prove
the rule that more conventional spending conditions are unlikely to be found
coercive. Even the Eleventh Circuit, which struck down the individual mandate,
upheld the ACA’s requirements on the states against the plaintiffs’ Spending
Clause challenge.66 As Elizabeth Foley has acknowledged, “[c]oercion claims
aren’t getting any traction for the simple reason that the Supreme Court in Dole
provided no guidance about how to know when federal strings cross the line
from encouragement to coercion.”67 In the absence of a determinate standard,
courts have chosen simply to back off.
D. Federalism and Economic Liberty
Before analyzing the underenforcement problem in more depth, I want to
take a moment to discuss how the arguments just canvassed interact. Several of
the ACA’s defenders have noted that the heart of the constitutional objection
to the individual mandate—and in particular its intuitive appeal to many
laypeople—rests on conceptions of individual economic liberty, rather than
federalism. Those defenders seem to think that this fact presents a major
problem for the ACA’s critics. As Peter Smith puts it, “if the problem with the
individual mandate is that it violates a libertarian ideal, then federalism is an
inappropriate constitutional framework in which to consider it.”68
This objection overlooks something fundamental about the role of
federalism in our constitutional system. As Ann Althouse has noted,
“federalism . . . can protect constitutional rights better than the direct assertion
of claims based on those rights.”69 It is easy to identify examples in which
federalism-based limits have been asserted—sometimes successfully, sometimes
not—for the purpose of protecting conceptions of individual liberty that would
have been difficult to vindicate directly. Professor Althouse focuses on two
instances involving the anti-commandeering doctrine. In Printz v. United States70
itself, that doctrine absolved local law enforcement of the obligation to enforce
federal gun control laws, thereby effectively protecting the right to bear arms
well before District of Columbia v. Heller71 made it respectable to assert Second
Amendment claims directly. Likewise, several state and local governments
forbade their officials to cooperate in the enforcement of the USA PATRIOT
Act72 because those governments believed various aspects of the Act to violate
LAW AND CONTEMPORARY PROBLEMS
individual rights against unreasonable searches and seizures as well as
antidiscrimination norms. Although such arguments faced dubious prospects if
asserted in an actual legal challenge to the Act, the anti-commandeering
doctrine gave functional shelter to those claims by preventing Congress from
requiring state and local officials to implement the Act.73
The Commerce Clause can operate in similar fashion. In Gonzales v.
Raich,74 for example, terminal cancer patients asserted not only that Congress
lacked authority to regulate medicinal use of homegrown marijuana, but also
that they had an individual constitutional right—sounding in privacy under the
Due Process Clause—to alleviate their suffering by using the drugs of their
choice.75 Had Raich gone the other way, it would have shielded this aspect of
personal autonomy from federal intrusion; as it was, however, the Raich
plaintiffs had to assert their Due Process rights directly on remand, whereupon
the Ninth Circuit rejected that claim.76 Likewise, at least one lower federal court
has struck down national efforts to discourage same-sex marriage on
enumerated powers grounds,77 and concerns about the limits of Congress’s
commerce power may well have given pause to opponents of same-sex marriage
who might otherwise have sought to legislate an outright national ban.
Professor Smith’s objection, shared by many of the mandate’s defenders,
rests on a quite different conception of constitutional federalism. On this view,
federalism has certain purposes—for example, to facilitate decentralized
regulation on matters implicating unique local conditions—and federalism
doctrine should generally be a direct function of those underlying purposes.78
Professor Siegel’s contribution to this symposium, for example, brings to bear
his important recent work with Robert Cooter arguing that the Constitution
confers power on Congress to act wherever national action is necessary to solve
a collective action problem among the states.79 Smith thus argues that it is
“intellectually incoherent” to use federalism arguments to protect individual
liberties that may have little to do with these structural purposes of federalism.80
There are three serious problems with this argument. The first is that, as I
have already discussed, it ignores federalism’s role in protecting individual
liberty even when the liberty in question is not a fundamental right that would
forbid governmental regulation in and of itself.81 As the Court recognized just
last term, “[f]ederalism has more than one dynamic.”82 Not only does it “grant
and delimit the prerogatives and responsibilities of the States and the National
Government vis-a-vis one another,” federalism also “‘secures to citizens the
liberties that derive from the diffusion of sovereign power.’”83 Similarly, in
Federalist 51, Madison described the vertical division of powers between
national and state as part of the “double security” that the Constitution affords
“to the rights of the people.”84 “Libertarian objections” couched in federalism
terms are thus hardly “intellectually incoherent”—rather, they stand squarely at
the center of federalist theory. It is not surprising that Tea Party opponents of
the ACA describe federalism as “a concept critical for protecting individual
The second problem is that Professor Smith’s objection—which is, to be fair,
widely shared among the ACA’s defenders—assumes that federalism doctrine
can, in fact, be constructed as a direct function of its underlying structural
values. But the age-old debates between formalists and functionalists86 and
between rules and standards87 cannot be resolved simply by assertion. This is, in
fact, an important issue that transcends the debate on the ACA. For example,
as important work by Professors Siegel and Cooter on “collective action
federalism” becomes more influential,88 there will be increasing efforts to
reshape judicial federalism doctrine in terms of direct value-application.
However, many scholars (including this one) have questioned whether courts
are really institutionally competent to make the complex and policy-laden
judgments that collective action analysis and other forms of direct
valueapplication would entail.89
Beyond, 37 AM. J. L. & MED. (forthcoming 2012) (“The kind of liberty at issue here is a generalized
freedom from governmental restraint. The question for Obamacare under this theory, then, is not
whether the insurance mandate violates individual rights in a way that ought to receive scrutiny under
the Fifth Amendment, but rather whether strongly-felt individual objections to the mandate ought to
counsel in favor of state control.”).
82. United States v. Bond, 131 S. Ct. 2355, 2364 (2011).
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
Finally, Professor Smith’s discussion suggests that the libertarian objection
to the ACA is inappropriately opportunistic: By making a federalism argument
for libertarian purposes, he says, ACA opponents “can only deepen the
suspicions of those who already view arguments about federalism as simply a
guise for some other policy agenda.”90 I have argued elsewhere, however, that
opportunistic federalism arguments are perfectly legitimate—more, they are
precisely the sort of arguments that the Framers counted on to hold the
constitutional structure together.91 In Federalist 51, Madison wrote that “[t]he
interest of the man must be connected with the constitutional rights of the
place,” and that the system would operate by a “policy of supplying by opposite
and rival interests, the defect of better motives.”92 In this system, federalism—
like every other structural value—is defended by those who have their own
opportunistic reasons for preferring one decision-maker over another.
Although some of us strive to be federalism purists, I do not expect to meet
many who share that passion.93
* * *
This discussion hopefully demonstrates why a prudent legal academic ought
not to bet the 401(k) on the Supreme Court striking down the ACA. This does
not mean, however, that the challenges to that statute’s constitutionality are
frivolous or, as Professor Tribe has asserted, “a political objection in legal
garb.”94 The plaintiffs’ challenge is grounded in bona fide constitutional
objections; they simply have the misfortune of relying on constitutional
principles that are underenforced in current doctrine.95 As discussed in the next
just each regulatory regime).”); Young, supra note 3, at 1844–48.
90. Smith, supra note 11, at 1746.
91. See Young, Dark Side, supra note 84, at 1308–11.
92. FEDERALIST NO. 51, supra note 84, at 349.
93. Professor Smith does give one more substantive reason for rejecting federalism arguments that
seek to protect individual liberty: “[I]f the courts import this libertarian objection into federalism
doctrine . . . the protection for individual liberty . . . will be even greater than it would be if the
limitation were imposed as a matter of substantive due process.” Smith, supra note 11, at 1746. That is
because “[u]nder the latter doctrine, compelling government interests can sometimes justify an
interference with individual liberty,” but under a federalism argument, “Congress would be
categorically precluded from compelling individuals to take actions that they would prefer not to take.”
Id. It is not immediately apparent how much difference this makes—strict scrutiny, after all, is nearly
always fatal in fact—or that it is necessarily a bad thing to protect individual liberty categorically rather
than pursuant to a balancing test. But in any event what is clear is that a federalism-based objection
actually protects individual liberty in a far less categorical fashion than would a successful substantive
due process claim. That is because the federalism-based objection does nothing to foreclose state
regulation of the individual decisions in question.
94. Tribe, supra note 9.
95. It is also an interesting and nonobvious issue whether, as Professor Tribe suggests, a
“nonpartisan majority of justices” would violate its “constitutional duty” by invalidating the ACA. Id.
After all, a justice swears her oath to uphold the Constitution—not, I submit, the particular doctrines
that the Court has developed to implement the Constitution. Those doctrines have the claim of stare
decisis, of course, but a justice does not violate her oath when she determines that a prior decision
meets the Court’s criterion for overruling. See Planned Parenthood v. Casey, 505 U.S. 833, 854–55
(1992) (articulating those criteria); see also, e.g., Agostini v. Felton, 521 U.S. 203, 235–36 (1997)
part, which doctrines are underenforced is a historically contingent matter. The
interesting question in the litigation over the ACA is whether the Court might
once again be prepared to change course.
THE CONTINGENT NATURE OF UNDERENFORCEMENT
The underenforcement of constitutional norms is a particular case of the
Legal Process notion of “institutional settlement.” That notion, which forms the
heart of Legal Process theory, holds that a critical function of law is to “settle”
the decision of some questions of law or fact in particular institutions, generally
based on considerations of comparative institutional competence.96 As Henry
Hart and Al Sacks explained, institutional settlement “expresses the judgment
that decisions which are the duly arrived-at result of duly established
procedures . . . ought to be accepted as binding upon the whole society unless
and until they are duly changed.”97 Settlement need not be—and generally is
not—complete; other institutions may review the initial determination through
established procedures. But the notion of settlement requires that, to at least
some degree, other institutions will defer to the initial determination even if the
reviewing institution might have decided the question differently in the first
place. The right to decide initially, in other words, is the right to get that
decision “wrong” (from the perspective of other observers, at least) within
certain bounds.98 Hence, an appellate court has a right to review the trial court’s
decisions of both fact and law, but it will generally defer to the trial court’s
resolution of the factual issues on account of that court’s superior institutional
position (for example, it sees the witnesses firsthand) as long as that resolution
meets some minimum threshold level of plausibility.99
When a court underenforces a constitutional norm, it does not purport to
(collecting cases and noting that stare decisis is “not an inexorable command” but “a policy judgment”
that “is at its weakest when we interpret the Constitution because our interpretation can be altered
only by constitutional amendment or by overruling our prior decisions”). Presumably, Tribe does not
think that the Court that developed the current, highly deferential doctrines violated its constitutional
duty by departing from the prior dual federalist regime in cases like Wickard v. Filburn, 317 U.S. 111
(1942). But unless we think that current doctrine is simply “true”—that it is congruent with the full
conceptual meaning of the relevant constitutional principles rather than simply an instance of
prudential underenforcement—a current justice would have the same option of recalibrating the
appropriate level of doctrinal deference.
96. See HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE
MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 2001) (1953);
see also Richard H. Fallon, Jr., Reflections on the Hart & Wechsler Paradigm, 47 VAND. L. REV. 953,
971–75 (1994) (discussing the place of this principle in Legal Process thought).
97. HART & SACKS, supra note 96, at 4.
98. See Fallon, supra note 96, at 962 (“[A]uthority to decide must at least sometimes include
authority to decide wrongly.”).
99. See, e.g., Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1163 (10th Cir. 2007)
(holding that appellants face a difficult burden in establishing “clear error” because “in a bench trial, . .
. the district court . . . enjoys the benefit of live testimony and has the opportunity firsthand to weigh
credibility and evidence”).
LAW AND CONTEMPORARY PROBLEMS
limit the force of that norm; it simply defers the initial determination of how
that norm should apply in particular circumstances to some other actor. For
instance, when McCulloch v. Maryland established a deferential standard for
reviewing whether an unenumerated means (creating a national bank) was
“necessary and proper” to accomplish some enumerated end under Article I
(collecting taxes, creating a currency, raising armies, et cetera),100 the Court was
not saying that necessity is a trivial requirement. Rather, the deferential
standard of judicial review signifies that the initial determination of necessity is
“settled” in Congress and the President, and courts should not disturb that
determination unless it falls outside broad bounds of reasonableness.101
Similarly, Justice Souter has described “[t]he practice of deferring to rationally
based legislative judgments [as] ‘a paradigm of judicial restraint.’”102 “In judicial
review under the Commerce Clause,” he explains, this practice “reflects our
respect for the institutional competence of the Congress on a subject expressly
assigned to it by the Constitution and our appreciation of the legitimacy that
comes from Congress’s political accountability in dealing with matters open to a
wide range of possible choices.”103
Some doctrinal rules that settle institutional authority in this way, like the
McCulloch standard, last a long time. But others change significantly over the
course of a few decades. The constitutional norms that were underenforced in
1920, for example, were quite different than the norms that were underenforced
in 1965. This part seeks to identify some factors influencing decisions to
underenforce particular constitutional principles and illustrates how those
factors may change over time. Before turning to that discussion, however, I deal
with a potential objection.
A. How Do We Know that Federalism is Underenforced?
The notion that a constitutional principle may be “under-” or
“overenforced” seems to imply that there must also be some optimal point at
which that principle would simply be, well, enforced. And one might also
assume that before we can sensibly speak of over- or underenforcement, we
must identify what that true or best meaning of the constitutional principle is.
We cannot, in other words, know whether courts are erring, and in which
direction, unless we know where we would actually like to be. If this view is
correct, then my discussion so far suffers from a rather large omission: I have
not made any effort to define the “true” conceptual meaning of constitutional
federalism or, for that matter, of economic liberty.
The objection requires inquiry into two distinct questions: First, do
constitutional principles actually have a fixed, “true” meaning that is distinct
from the doctrines that courts use to enforce them? Second, to what extent do
we need to identify that meaning in order to talk intelligently about whether
doctrine under- or overenforces the principle in question? The answer to the
first question, in my view, is clause-specific. Some constitutional principles do
have a single determinate meaning; As Fred Schauer has pointed out, the
difficulty of interpreting some portions of the Constitution should not blind us
to the fact that there are also “easy cases.”104 The President, for example, must
be at least thirty-five years old.105 Unfortunately, these provisions with clear and
determinate meanings generally require little judicial enforcement, and thus
little doctrine. In these situations where it would be easy to tell if a provision
were being over or underenforced, the problem generally does not arise.
Other constitutional principles, however, are considerably less determinate
as a matter of text, and these typically are the principles that require judges to
develop doctrinal rules that implement them in particular situations. The
potential for a gap between conceptual and doctrinal meaning—the predicate
for over- and underenforcement—thus arises in precisely those situations where
we are least likely to reach consensus on the meaning of the underlying
concepts. Even if your humble author were allowed the space to develop a
complete parent concept of federalism, it is unclear what good that would do;
other academics, not to mention judges and politicians, would no doubt frame
the concept differently. If we must agree about a single true concept of “due
process” or “federalism” before we can discuss whether those principles are
under- or overenforced in current doctrine, then the latter discussion is unlikely
ever to get off the ground.
It should be possible, however, to reach widespread agreement on a
relatively thin version of at least some constitutional principles.106 This may be
especially true on the structural side of constitutional law, where the central
principles of federalism and separation of powers may usefully be framed in
terms of a balance among competing institutions. One need not agree on
precisely where the balance should be struck to think that some meaningful
balance is required. A thin conception of federalism might take its cues from
Chief Justice Marshall’s opinion in Gibbons v. Ogden:107 The enumeration of
national powers presupposes something not enumerated; each level of
government should retain important competences; and a (relatively) neutral
judicial arbiter should referee the jurisdictional disputes that arise between the
nation and the states. It is not hard to find support for each of these
propositions even from people and decisions that otherwise embrace widely
varying views of national power vis-à-vis the states.108 Much room for
disagreement remains as to where to draw the relevant lines. But sometimes the
doctrine adopted by courts will fall outside this zone of reasonable conceptual
meanings. In those cases, it makes sense to say that the the underlying concept
is over- or underenforced.
The second question, then, is whether this thin conception of federalism is
sufficient to ground a meaningful discussion of whether a constitutional norm is
underenforced. I submit that it is. Consider the first aspect of Gibbons noted
above—Chief Justice Marshall’s notion that the principle of enumerated powers
108. On the first proposition, enumerated powers, see, e.g., NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 30 (1937) (“The authority of the federal government may not be pushed to such an extreme
as to destroy the distinction, which the commerce clause itself establishes, between commerce ‘among
the several States’ and the internal concerns of a State.”); see also United States v. Lopez, 514 U.S. 549,
(1995) (Breyer, J., dissenting) (insisting that “[t]o hold this statute constitutional is not to ‘obliterate’
the ‘distinction between what is national and what is local’” and suggesting that the Federal
Government would lack power “to regulate ‘marriage, divorce, and child custody,’ or to regulate any
and all aspects of education”) (quoting id. at 564, 567 (majority opinion)); Matthew Adler, State
Sovereignty and the Anti-Commandeering Cases, 574 ANNALS 158,
) (“[D]oes our
Constitution limit the powers of the national government and reserve regulatory powers to the states?
The answer—and it is hard to see how there could even be reasonable disagreement on this score—is
yes. . . . In short, there are at least some types of legislation (such as laws regulating wholly intrastate
activities) that the Constitution permits states to enact but disempowers the national government from
On the second proposition, preservation of meaningful competences for both state and federal
governments, see JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF
THE CONSTITUTION 170–80 (1996) (recounting how nationalist efforts at the Philadelphia Convention
truly to subordinate the States were defeated, and the ultimate compromises protected a meaningful
role for state governments); THE FEDERALIST NO. 32, at 200 (Alexander Hamilton)
(Jacob E. Cooke
(“[A]s the plan of the convention aims only at a partial Union or consolidation, the State
Governments would clearly retain all the rights of sovereignty which they before had and which were
not by that act exclusively delegated to the United States.”); Koen Lenaerts, Federalism: Essential
Concepts in Evolution-The Case of the European Union, 21 FORDHAM INT'L L. J. 746, 748 (1998)
(“[F]ederalism searches for the balance between the desire to create and/or to retain an efficient central
authority . . . and the concern of the component entities to keep or gain their autonomy so that they can
defend their own interests.”).
On the third proposition, judicial review, see, e.g., Lopez, 514 U.S. at 578 (Kennedy, J.,
concurring) (“[T]he federal balance is too essential a part of our constitutional structure and plays too
vital a role in securing freedom for us to admit inability to intervene when one or the other level of
Government has tipped the scales too far.”); Vicki C. Jackson, Federalism and the Uses and Limits of
Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2224 n.197 (1998) (“[T]o declare federalism limits
unenforceable is destabilizing and that the possibility of judicial enforcement is conducive to more
responsible governance consistent with constitutional traditions and judicial competencies.”); Koen
Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 AM. J. COMP. L. 205, 263 (1990)
(“Federalism is present whenever a divided sovereign is guaranteed by a national or supranational
constitution and umpired by the supreme court of the common legal order.”) (emphasis added); Herbert
Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and
Selection of the National Government, 54 COLUM. L. REV. 543, 559 (1954) (emphasizing non-judicial
checks on national authority, but acknowledging that “[t]his is not to say that the Court can decline to
measure national enactments by the Constitution when it is called upon to face the question in the
course of ordinary litigation; the supremacy clause governs there as well”).
particular industries were “affected with a public interest.”129 At the same time,
it seems unlikely that the present underenforcement of federalism and
economic liberty can be attributed wholly to the indeterminacy of the
underlying constitutional principles. After all, there are a variety of areas in
which both the underlying principles and the doctrines that the Court has
devised to implement them are highly indeterminate, and yet the Court
continues to enforce these rules.
Consider, for example, the basic principle of personal privacy in Griswold v.
Connecticut130—a decision so widely supported that Robert Bork’s questioning
of it made him radioactive as a nominee to the high court.131 Controversy rages
over particular extensions of Griswold’s principle (particularly to abortion), but
the Court’s role in protecting privacy rights seems well-established, and the
Court continues to extend Griswold with considerable confidence.132 Or
consider the Court’s revival of economic substantive due process itself in BMW
v. Gore, which claimed a role for the Court reviewing punitive damages awards
under the Due Process Clause.133 Aside from a few annoying cranks (including
this one) who thought BMW amounted to a return to the Lochner era, no one
seems that upset about BMW, and the Court appears to see relatively little need
to defer to other institutions in enforcing the relevant principles. This is true
notwithstanding the almost total lack, under both Griswold and BMW, of
determinate standards for defining and applying the doctrine.
Other examples abound. The Court’s well established “standard”—if one
can even call it that—for personal jurisdiction under the Due Process Clause is
whether the defendant has “minimum contacts” with the forum state.134 It
applies a general rule of “reasonableness” to searches under the Fourth
Amendment.135 An aggressive recent line of cases has limited state imposition of
capital punishment as “cruel and unusual” under the Eighth Amendment based
on the Court’s own moral intuitions, a highly tendentious approach to counting
the positions of state jurisdictions, and occasional references to foreign law.136
My point is not that these cases are wrong; I approve of several of them and can
live with many of the others. What is interesting, however, is that despite
significant Frankfurter Constraint problems in each of these areas, the Court
has not felt the need to develop doctrines that underenforce the relevant
Something more than indeterminacy must be going on with
underenforcement. I submit that that “something more” has much to do with
the social and political context in which the Court formulates doctrine. Both
popular constitutionalism and the responses of other political actors influence
when the Court will take the lead on implementing particular constitutional
principles, and when it will settle primary authority to implement those
principles in other actors by developing doctrines that underenforce the
relevant norms. This dynamic reflects the Court’s need not only to be faithful to
legal principle but to make sure the law “accounts for the conditions of its own
legitimation”—to practice, in my friend Neil Siegel’s terms, “the virtue of
The influence of popular constitutionalism is, of course, notoriously hard to
pin down. It may be useful to think of that influence as having both a
substantive and an institutional component. That is, the Court pays heed not
only to popular attitudes on particular constitutional issues, but also to more
general public views on the legitimacy and appropriate scope of judicial review
itself. The Court may well be more willing to enforce constitutional principles,
despite the indeterminacy of the available doctrinal formulae, when it believes
that the underlying principles have strong public support and when it believes
the public’s general approval of judicial review to be strong. This view would
account for the Rehnquist and Roberts Courts’ willingness to intervene, in a
fairly aggressive way, on a number of issues despite the absence of determinate
doctrinal rules. On gay rights, for example, Lawrence eschewed traditional
doctrinal tests in favor of a highly amorphous concept of “liberty,” but the
Court was moving in line with broader social trends on the issue in question and
also enjoyed high levels of diffuse support.138 Similarly, one can hardly explain
the Court’s willingness to decide difficult cases about affirmative action and
race-based preferences by pointing to highly determinate rules that the Court
has developed for such cases; rather, the Court’s relatively non-deferential
stance in this area seems better grounded in the fact that “an equivocating
Court matched a confused public somewhere in the middle on the issue.”139 If
this is right, then we can expect underenforcement to occur primarily in
particular areas where the Court is unsure of public support for its results, or at
times when more diffuse support for judicial review generally is in question.
Current doctrine on federalism and economic liberty reflects a profound
change since the 1930s in public expectations of the general role of government
137. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959, 963 (2008).
138. See FRIEDMAN, supra note 18, at 359–60 (noting a “remarkable” “transformation in public
debate and opinion” on the issue); id. at 15 (noting high levels of diffuse support in the Rehnquist
139. Id. at 361.
LAW AND CONTEMPORARY PROBLEMS
in society and of the role of the national government in particular. But it also
reflects a change in public expectations of the role of the Court over the same
period. The next section sketches how both sets of expectations evolved in ways
that encouraged the Court to underenforce constitutional norms of federalism
and economic liberty. Part IV then suggests ways in which those expectations
might be changing again.
C. Underenforcement Over Time
As a thought experiment, consider the constitutional world of 1920.
Beginning in the late nineteenth century, the Supreme Court increasingly saw
its role as protecting individual economic liberties and the free market against
increasing incursions by both state and national government.140 It did this
primarily through the doctrine of freedom of contract expressed in cases like
Allgeyer v. Louisiana141 and Lochner v. New York,142 although it is important to
understand that the Court viewed freedom of contract as just one manifestation
of a broader right of individual self-determination that also included less overtly
economic liberties such as freedom of worship and the right to rear one’s
children without undue interference from the State.143 Although the Court
upheld as many statutes as it struck down during this period,144 the Court’s
“reasonableness” test for incursions on economic liberty was relatively
undeferential to political actors.145 Economic liberty was not, in other words,
Neither was the Commerce Clause. Although the Court sometimes allowed
national regulation of intrastate activity when such regulation was necessary to
implement a viable regime governing interstate commerce,146 the Court retained
confidence in its ability to draw principled lines between “commerce” and
antecedent activities like manufacturing,147 between goods that were “in the
stream of [interstate] commerce” and those that were not,148 and between
“direct” and “indirect” effects on interstate commerce.149 The Court drew these
lines, moreover, notwithstanding its recognition that they raised significant
Many constitutional norms, however, were underenforced in 1920. Plessy v.
Ferguson’s refusal to challenge Jim Crow segregation under the Equal
Protection Clause, for example, was grounded not only in racist attitudes on the
merits (reflecting attitudes in the broader society) but also in institutional
pessimism concerning the capacity of the federal courts to effect social
change.151 Justice Holmes’s seminal dissents in the World War I free speech
cases remained just that—dissents—as the Court upheld restrictions on antiwar
speech in cases like Schenck152 and Abrams.153 These cases naturally reflected the
unpopularity of dissent as well as institutional deference to the political
branches on questions of national security. Finally, the First Amendment’s
Religion Clauses had been ineffectual in stopping the Mormon persecutions in
the late nineteenth century,154 and the federal courts had taken no steps to limit
daily Bible reading and prayer in the public schools.155
One could identify many other examples, but these should suffice to make
the basic point. Nowadays, we would consider underenforcement of the Equal
Protection, Free Speech, and Religion Clauses virtually unthinkable.156 The
Court’s primacy in these areas is well-established, and the contemporary
doctrinal rules that implement these provisions are generally rigorous and
non150. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935) (Cardozo,
J., concurring) (acknowledging that “[t]here is a view of causation that would obliterate the distinction
between what is national and what is local in the activities of commerce,” but insisting that “[t]he law is
not indifferent to considerations of degree”). The Court also plainly recognized the relation between
federalism-based limitations on government action and individual economic liberties. Enforcing limits
on the Commerce Clause, after all, prevented national interference with the free market at the same
time that the Court’s rigorous enforcement of the dormant Commerce Clause worked alongside the
Due Process cases to prevent state interference. See generally Stephen A. Gardbaum, New Deal
Constitutionalism and the Unshackling of the States, 64 U. CHI. L. REV. 483 (1997).
151. 163 U.S. 537, 551–52 (1896) (observing that social equality of the races “‘can neither be
accomplished nor promoted by laws which conflict with the general sentiment of the community . . . .’ If
one race be inferior to the other socially, the Constitution of the United States cannot put them upon
the same plane”) (quoting People v. Gallagher, 93 N.Y. 438, 448 (1883)).
152. Schenck v. United States, 249 U.S. 47, 53 (1919).
153. Abrams v. United States, 250 U.S. 616, 624 (1919).
154. See, e.g., Davis v. Beason, 133 U.S. 333 (1890) (upholding a federal statute requiring Mormons
to disavow the teachings of the church); Late Corp. of the Church of Jesus Christ of Latter-Day Saints
v. United States, 136 U.S. 1 (1890) (upholding a federal statute dissolving the Mormon Church and
seizing its property); Reynolds v. United States, 98 U.S. 145 (1878) (upholding convictions for
polygamy against a Free Exercise challenge).
155. See MICHAEL W. MCCONNELL, JOHN H. GARVEY & THOMAS C. BERG, RELIGION AND THE
CONSTITUTION 483 (2d ed. 2006). Of course, the Establishment Clause was not even incorporated
against the States until 1947, in Everson v. Board of Education, 330 U.S. 1 (1947). But the refusal to
interpret the Fourteenth Amendment as applying particular Bill of Rights protections to the States is
not that different from underenforcement—after all, the effect of nonincorporation was to defer issues
of religious liberty to state institutions.
156. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (establishing a presumption of irreparable
injury in free speech cases where the plaintiff seeks injunctive relief, because “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
deferential toward other actors. Indeed, while modern courts deciding
federalism and economic liberty cases eschew the right to sit as a
“superlegislature,”157 courts plainly do perform this function in the broad range
of cases in which they have adopted implementing doctrines of “strict scrutiny.”
In such cases, courts second-guess the factual determinations of legislatures,
insist on the least restrictive possible means of pursuing state interests, and rule
out many state interests as simply insufficiently weighty to warrant imposition
on fundamental rights.158 This approach may well be appropriate in many
instances, but we should be clear on the fact that courts do frequently sit as
“superlegislatures,” and the decisions about when and where they do so are
drawn not from the underlying constitutional principles, but from contingent
institutional judgments that change over time.
The relevant changes are familiar history. The Depression seriously
damaged not only laissez faire faith in the free market but also confidence in
state governments as the primary actors responsible for addressing domestic
social ills. In the wake of the New Deal, the public came to expect and rely
upon a significant role for government in regulating the economy and
guaranteeing basic social welfare.159 And the Supreme Court, which had fought
these changes during the 1930s, emerged weak and chastened.160 It is not
entirely easy to summarize the areas of underenforcement under the “double
standard” of judicial review that emerged in the 1940s and 1950s,161 but one
explanation that works as well as any is that the Court stopped doing what it
had been doing when it got in trouble. Federalism and economic liberty would
be underenforced, and the Court would try to carve out a new niche for itself in
areas of civil liberties that it had previously neglected.162
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 185
This it did with considerable success. But the story I have told should make
clear the highly contingent nature of underenforcement. Underenforcement is
not, in at least most cases, a natural or inevitable quality of particular
constitutional norms. Rather, the patterns of under- and overenforcement
change over time in response to events, conditions, and public attitudes. And
what can change once can change again.
POPULAR CONSTITUTIONALISM AND THE HEALTHCARE DEBATE
Michael Dorf has recognized that “the meaning of the Constitution is never
finally settled. Even long-lasting resolutions of particular controversies can be
re-opened when the People are moved to action.”163 If this is true of
constitutional meaning, it is doubly true of the doctrinal constructs that courts
develop to implement that meaning. This last part considers the prospect that
aspects of popular constitutionalism may prompt the Court to revisit its
doctrines that presently underenforce principles of federalism and economic
liberty. I do not wish to be read as endorsing popular constitutionalism as a
normatively legitimate form of constitutional change; indeed, it has always
seemed to me that a primary purpose of constitutionalism is precisely to
entrench certain principles and structures against change, particular change
driven by popular pressure.164 Nor do I want to embrace any particular theory as
to how popular constitutionalism operates. As a descriptive matter, however, it
is hard to deny that changes in public attitudes have their impact on
constitutional interpretation. This last part addresses how those forces may play
out in with respect to the debate over the ACA.
The suits challenging the ACA take place in the context of a broader
popular debate concerning the role of government in general and the national
government in particular. Although the plaintiffs naturally insist that the courts
can strike down the ACA without departing from present doctrine, it is plain
federal programs and nothing approaching the magnitude of the ACA’s regulatory scheme appeared
until the middle third of the Twentieth Century. Despite attempts to develop an originalist pedigree for
the ACA and other components of contemporary progressives’ constitutional vision, see, e.g., Balkin,
supra note 88, at 15–47, the more persuasive strand of progressive scholarship acknowledges the need
to ground the New Deal in either novel theories of constitutional amendment, see, e.g., BRUCE
ACKERMAN, WE THE PEOPLE: VOLUME 2: TRANSFORMATIONS (2000), or notions of “living
constitutionalism,” see, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60
B.U. L. REV. 222, 204, 222–24 (1980).
163. Michael C. Dorf, Nullification, Secession, and Guns Show Constitutional Meaning is Never
Settled, FINDLAW’S WRIT, Feb. 24, 2010, http://writ.news.findlaw.com/dorf/20100224.html.
164. See FRIEDMAN, supra note 18, at 372–74 (identifying, as the crucial question, whether the
Supreme Court is sufficiently independent of popular opinion to enforce constitutional principle in the
face of majority disapproval); Ernest A. Young, The Constitution Outside the Constitution, 177 YALE
L.J. 408 (2007) (identifying entrenchment as a key purpose of constitutions). Many instances of popular
constitutionalism, moreover, are spectacularly unattractive. See, e.g., Lucas A. Powe, Jr., Are “the
People” Missing in Action (and Should Anyone Care)?, 83 TEX. L. REV. 855, 866–70 (2005) (identifying
the South’s “massive resistance” to Brown v. Board of Education as an instance of popular
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
that the lawsuits are also part of a broader effort to articulate a more libertarian
vision of the government’s authority over the individual and a more federalist
vision of the reach of national power.165 The disdainful rhetoric with which the
ACA’s defenders have greeted the lawsuits should also be viewed as part of this
essential process of constitutional contestation. Constitutional law trades on
broad societal intuitions about what is “normal”—in individual conduct,166 in the
scope of government authority,167 and in the role of the courts.168 Thus, when
defenders of the present equilibrium say the case is “easy” and depict those who
disagree as unsophisticated and in need of a good Constitutional Law I class,169
they are seeking to defend and preserve the currently prevailing view of
constitutional normalcy. But this view reflects the current state of doctrine, with
its areas of significant underenforcement, rather than some absolute truth of the
underlying principles themselves. Should the defenders of the status quo lose
their argument in the ACA cases, something quite different may seem
“normal” or even inevitable a half century hence.
In assessing the current debate, moreover, it is important to recognize how
dramatically the “New Deal settlement” in constitutional law has already
changed in the intervening years. That settlement saw a Court in retreat,
eschewing challenges to the political branches virtually across the board. By the
next decade, however, the Court had taken up the cause of noneconomic
rights—first racial equality,170 then criminal procedure,171 equal voting,172 and
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 187
ultimately privacy.173 With the privacy cases, moreover, the Court had reversed
its rejection of substantive due process review during the New Deal.174 For a
similar set of transformations, consider the Court’s national security
jurisprudence. The New Deal Court was prepared largely to rubber-stamp the
Executive’s judgments on national security, as it did in the Japanese Internment
case.175 During a lesser conflict in the 1950s, the Court was more willing to
challenge the Executive in the Steel Seizure case,176 but the Warren Court
remained extremely hesitant to block national security measures.177 But by the
time of the Rehnquist and Roberts Courts, these supposedly more conservative
courts were nonetheless willing to block key executive and legislative measures
for dealing with suspected terrorists.178
In all these areas, norms that were previously underenforced as part of the
New Deal settlement became rigorously enforced over time. The obvious
question, of course, is whether there is reason to believe that the same thing
might happen with respect to federalism or economic liberty. I make no
confident predictions here. My fundamental point is simply that the current
doctrines that make the ACA’s defenders so confident of their positions are
themselves historically contingent and not set in stone. The only thing we can
say with relative certainty is that as popular opinion shifts concerning the
appropriate role of government and the legitimacy of programs like the ACA,
those shifts will have an impact—at some point, in some form—on
A. Institutional Mechanisms
Almost no one seems to believe anymore that political culture, and social
movements do not influence the courts or the development of constitutional
law. The tricky part is identifying the institutional mechanisms by which this
occurs. This essay is not the place to develop a full-blown institutional theory of
popular constitutionalism, and my central claim can remain agnostic on that
issue. That claim asserts simply that the constitutional issues raised in the ACA
suits are “easy” only within current doctrine, that that doctrine underenforces
the relevant constitutional norms, and that such underenforcement is
historically contingent and vulnerable to shifts in the zeitgeist. It may be
helpful, however, to offer a few observations on the institutional mechanisms by
which popular constitutionalism may influence doctrinal change.
Jack Balkin has helpfully identified two institutional paths by which popular
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
constitutionalism influence the development of constitutional law. One path
runs through political parties: “social movements . . . influence the two major
political parties, which, in turn control the system of judicial appointments.”179
The point is not that judges self-consciously accede to the wishes of parties or
movements in interpreting the Constitution; rather, social activism “leads to the
appointment of judges who sincerely believe that the best interpretation of the
Constitution is one that happens to be sympathetic with social movement
claims.”180 Professor Balkin and Sanford Levinson have labeled this mechanism
“partisan entrenchment,” reflecting the fact that the judges appointed by
political partisans may well outlast the political force of the social movement
that brought them to the bench.181
Professor Balkin’s second path involves “appeals to the values of national
elites.”182 “Social movement politics,” he argues, “play a crucial role in getting
both popular and elite opinion to view the world differently and to
acknowledge changes as salient and important.”183 Again, judges are unlikely to
see themselves as bending the Constitution to suit contemporary mores; rather,
political change influences how judges see the world, and constitutional
doctrine may look different in light of such changed circumstances. The key
distinction between these two paths is that “[a]ppeals to national elite values try
to change constitutional doctrine by changing the minds of sitting judges,”
which tend to reflect elite opinion, “while the strategy of partisan entrenchment
tries to change the judges.”184
The next two sections examine how both these mechanisms may influence
the way that courts formulate and apply constitutional doctrine in the ACA
litigation. Section B considers the operation of public opinion and social
movements through the political branches. I focus on the “Tea Party,” which
actually originated in opposition to the Wall Street bailouts but quickly came to
focus on healthcare reform as a core mobilizing issue,185 but I also consider
popular constitutionalist claims by the ACA’s proponents. Although Professor
Balkin emphasizes the political branches’ role in appointing judges, who in turn
shape doctrine, I consider some additional ways in which political branch
actions may influence judicial decisionmaking. Section C turns to the “the
people themselves”186 and the broader influence of public opinion on judges
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 189
interpreting the Constitution. Survey data shows profound shifts in public views
on government since the New Deal; in particular, a public that placed most of
its faith in national institutions after the Depression now reposes considerably
more trust in state and local governments. Likewise, large majorities of the
American people believe the ACA to be unconstitutional. While such views will
not control the outcome of Supreme Court litigation in any crude way, the
Court is unlikely to be indifferent to them.
Finally, Section D considers an additional institutional mechanism that most
theories of popular constitutionalism discount—that is, the role of state
governments. Twenty-eight states have signed onto various suits challenging the
ACA.187 Nor is state action confined to litigation: state legislatures have enacted
laws purporting to constrain ACA implementation, and state executive officials
have pushed back against particular aspects of the ACA through administrative
channels.188 I want to suggest that state governmental action may be a
particularly promising mode of popular constitutionalism because it
incorporates elite as well as mass opinion and features well-developed
mechanisms of accountability. These advantages are all on display in broad
controversies over the ACA.
B. Social Movements and Political Branch Action
Much of the scholarship on popular constitutionalism has focused on the
role of social movements in shaping constitutional meaning. In Professor
Balkin’s account, social movements influence existing political parties, who win
elections and ultimately appoint judges that interpret the Constitution in ways
congenial to the movement’s agenda.189 The Supreme Court Justices that will
ultimately decide the ACA cases represent the judicial legacy of successive
waves of partisan activity, motivated by contrasting impulses to recover
something of a constitutional vision giving greater weight to federalism and
economic liberties, on the Republican side,190 and to legitimate a more
progressive vision of activist government, on the Democratic side. It is harder to
assess the impact of current social movements on constitutional doctrine.
Defenders of the ACA have suggested that the new healthcare law itself “was
the product of popular constitutionalism, a victory for political advocates who
argued that the right to health care was a fundamental human right that
AND JUDICIAL REVIEW (2004).
187. For an overview of state litigation challenging the ACA, see Richard Cauchi, State Legislation
and Actions Challenging Certain Health Reforms, 2011-2012, NCSL, (Feb. 20, 2012),
188. See infra notes 244–245 and accompanying text.
189. See supra note 179.
190. See, e.g., Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Constitutional Power,
78 IND. L.J. 363, 367 (2003) (“Since 1995, the Rehnquist Court has begun adopting theories of
congressional power and federalism strikingly similar to those developed in the reports of the Reagan
Justice Department. One of those reports was devoted to the critical role of judicial appointments in
shaping the development of the law.”).
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
warranted protection by the federal government.”191 The ACA’s opponents—
particularly the Tea Party—also claim the popular constitutionalist mantel.192
These sorts of conflicting claims highlight both the vibrancy of the “constitution
outside the courts” in contemporary culture and the danger that “popular
constitutionalism” can mean just about anything.
According to one leading account, “there’s no Tea Party, but there is a Tea
Party movement.”193 That movement seems to have originated in the spring of
2009 in a series of protests growing out of the national government’s handling of
the economic crisis, but it quickly took up the ACA as a focal point for its
critique of big government.194 The group has “no central leader, organization, or
even organizing committee,” but rather relies on “small chapters scattered
throughout the country, with rough coordination via social media, the Internet,
and local activist groups.”195 Ilya Somin has pointed out that, although there are
many commonalities between the Tea Party and other movements that have
changed our constitutional landscape, “the Tea Party . . . is the first such
movement in many years to focus its efforts primarily on limiting the power of
the federal government.”196
As Professor Somin notes, “[i]t is too early to say whether the Tea Party will
have any major lasting impact.”197 There is little doubt, however, that the
movement has sparked a rare emphasis on constitutional law—and even
constitutional theory—in public debate.198 Professor Balkin’s model emphasizes
the interaction of social movements and political parties, and in fact the Tea
Party has pursued a deliberate strategy of “opportunistically inflitrat[ing]
existing political parties (mostly the Republican Party), pressuring them to
embrace principles of importance to the movement.”199 The movement has had
considerable success at the congressional level, supporting numerous successful
candidates in the 2010 elections and establishing a Tea Party caucus in
Congress.200 With all due respect to the crazy unpredictability of this year’s race
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 191
for the Republican nomination, however, it seems unlikely that the Tea Party
will ultimately succeed in nominating one of their preferred candidates for
President. If a moderate Republican wins the White House in 2012, the Tea
Party will likely have an impact on legislative initiatives in Congress and,
perhaps, judicial selection. And even if President Obama wins reelection, his
legislative initiatives and judicial nominees will confront a congressional
opposition profoundly influenced by Tea Party principles.
Professor Balkin’s partisan entrenchment model hardly captures all the
ways in which political change influences constitutional law, however. Another
involves the enactment of ordinary legislation in response to social movements.
I have argued elsewhere that ordinary legislation often has constitutional
significance, in the sense that statutes, regulations, and government practices
“constitute” our governmental structure in ways that supplement the
barebones edifice of the canonical Constitution.201 The ACA is certainly
“constitutional” in this sense—it restructures the relationship between federal
and state regulators, as well as the rights and obligations of individual citizens,
in profound ways. My point in this essay is slightly different, however: Ordinary
enactments, particularly to the extent that they create lasting institutions like
government agencies and endow important interest groups with new or
enhanced interests that they will fight to protect, acquire significant institutional
weight that judges ultimately must take into account in constitutional
interpretation. As Ronald Dworkin’s classic discussion recognized,
constitutional theories and doctrines developed by judges must “fit” the greater
part of our existing institutional arrangements.202 By changing those
arrangements—that is, the vast majority of our law that is not constitutionally
entrenched—political movements also shape the constraints within which
constitutional interpreters must operate.
Similarly, political movements elect or at least influence Presidents. In
Professor Balkin’s account, the primary role of the Executive is to appoint
judges. But Presidents shape constitutional law in other ways as well. They
interpret the Constitution for themselves in innumerable ways: They may veto
laws on constitutional grounds even though the courts would uphold them, as
Andrew Jackson did with the Bank;203 they may be the primary constitutional
interpreter in areas, such as foreign and military policy, where the courts are
unlikely to intrude;204 they may tailor the interpretation and implementation of
federal statutes by executive agencies to constitutional concerns whether or not
those concerns are shared by the courts.205 Likewise, the President influences
the courts in ways other than appointments: As a litigant, the Executive often
COLLOQUY 267, 267–68 (2011).
201. See generally Young, supra note 164.
202. Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1058–62 (1975).
203. See supra note 101 and accompanying text.
204. See Bradley & Morrison, supra note 167.
205. See, e.g., Johnsen, supra note 190, at 385–86 (discussing Reagan administration directives
instructing federal executive branch officials how to interpret the limits of national power).
LAW AND CONTEMPORARY PROBLEMS
can affect the timing and posture of judicial interpretation by seeking or
opposing certiorari;206 its views both of constitutional meaning and of the
governmental interests that figure in most doctrinal tests carry significant
weight with the courts;207 and in extreme cases the Executive may undermine
legislation it views as unconstitutional by refusing to defend it when it is
It is not hard to imagine how these dynamics might bear on the future
development of constitutional doctrine relevant to healthcare. The enactment
of the ACA, the concomitant creation and expansion of federal and state
bureaucracies to implement it, and the establishment of key individual
entitlements such as the right to coverage without regard to preexisting
conditions all create established institutions and settled expectations that will
exercise increasing gravitational force on constitutional interpretation as the
years go on. The weight of these institutions will vary as future Congresses and
state governments either implement the ACA’s mandates or chip away at it
through underfunding, partial repeals, or bureaucratic resistance. Likewise, the
coming presidential election will likely function as a sort of referendum on the
ACA. In the event that the legislation’s constitutionality is not conclusively
resolved prior to the election,209 the outcome of the election will either cement
or undermine the ACA’s standing. And the posture of the next presidential
administration—that is, a hostile Romney administration or a friendly second
Obama administration—may matter a great deal. If a Romney administration
were to refuse to defend the Act on federalism grounds, for instance, that would
likely have an important impact on the ACA’s prospects in the courts.
To say that social movements in favor of healthcare rights and against an
overactive national government will “have an important impact” on
constitutional adjudication, however, leaves us still a long way from pinning
down precisely what that impact will be or how it will weigh against other
factors. None of the extant theories of popular constitutionalism can provide
anything close to a definitive answer to those questions. And that problem
becomes even more daunting as we move from concrete institutional
mechanisms, such as the influence of social movements on political parties and
the national political branches, to the more diffuse influence of public opinion
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 193
C. Public Opinion and the Court
Social movements and other forms of popular constitutionalism influence
broader public opinion—both that of legal elites and the public at large.210 Over
time, as Barry Friedman has shown, shifts in those opinions seem to influence
the course of constitutional interpretation.211 This section surveys changes in
public opinion and speculates a bit as to how those changes may affect the
constitutional environment in which the ACA cases will be decided. At least
three sets of views are potentially relevant: public attitudes about the general
distribution of authority between the national government and the states;
attitudes about the Supreme Court and the role of judicial review; and specific
public views about the constitutionality and desirability of the ACA itself. This
paper makes no strong predictions about how the Court will respond to these
shifts in public opinion. The point is simply to cast suggest that contemporary
opinion may offer the Court an opening to change its doctrine if it is inclined to
Survey data on popular trust in government reflects significant alterations in
relative trust for states and national institutions since the New Deal. Megan
Mullin reports that “[a]lthough trust in the federal government has declined
since the 1960s, attitudes toward subnational governments have held steady or
even improved. State and local governments historically inspired little public
confidence, but surveys conducted in recent decades reveal rising public support
relative to feelings toward Washington.”212 The result is that “[g]iven a choice
among levels of government, survey respondents are increasingly likely to
express faith and confidence in states and localities and to perceive them as
being closer to the people and giving more for the public’s money.”213
Summarizing the available data, Cindy Kam and Robert Mikos conclude that
[c]itizens on average evaluate the performance of the federal government as
significantly lower than that of the state and local governments, report less faith in the
federal government to “do the right thing,” have significantly lower confidence in the
ability of the federal government to solve problems effectively, see the federal
government as significantly less responsive than lower levels of government, and
nearly 60 percent see the federal government as the most corrupt level of
As Professors Kam and Mikos point out, “[t]rust in government is politically
210. See Balkin, supra note 179, at 32.
211. See FRIEDMAN, supra note 18, at 14.
212. Megan Mullin, Federalism, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 209,
214 (Nathaniel Persily, Jack Citrin, & Patrick J. Egan eds., 2008).
213. Id.; see also FRIEDMAN, supra note 18, at 357 (citing survey data that since the 1960s, public
trust in federal institutions has sharply declined relative to trust in state and local institutions).
214. Cindy D. Kam & Robert A. Mikos, Do Citizens Care about Federalism? An Experimental Test,
4 J. EMPIRICAL LEGAL STUD. 589, 598 (2007) (reporting results from the 2000 Attitudes Toward
Government Study, but concluding that “[t]hese findings are consistent with those reported by other
scholars, using other nationally representative surveys”).
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
consequential: it affects public opinion and voting decisions.”215 Most obviously,
support for state institutions may translate into political opposition to measures
that would increase federal power vis-à-vis the states. In Federalist 17,
Alexander Hamilton suggested that state governments “will generally possess
the confidence and good will of the people; and with so important a support will
be able effectually to oppose all incroachments of the national government.”216
Robert Mikos has dubbed this phenomenon the “populist safeguards of
federalism.”217 While it is difficult to establish the influence of such safeguards
directly, some scholars have suggested that they were powerful enough to impel
movements in the 1980s and 1990s to devolve significant governmental
authority to the states.218
The impact of such shifts in public opinion may not be confined to the
political branches of government. Barry Friedman’s account of the Rehnquist
Court’s “federalist revival” in the mid-1990s, for example, suggests that “[e]ven
if some of the specific federalism decisions were hard to follow and others
barely registered, the American public was by all accounts well behind the idea
of devolving power to the states.”219 When the Court decided United States v.
Lopez in 1995, for example, “[p]olls . . . not only showed huge support for states
running things like education, crime fighting, and job training but also showed
the public’s ability to distinguish functions that were better suited to the federal
government, such as the environment, civil rights, and the economy.”220 The
Court may thus feel more confident limiting Congress’s power when public
opinion seems to want that power to be more limited.
We have also seen, and continue to see, important shifts in public
perceptions of the Court’s role, and these shifts have arguably supported the
Court’s gradual expansion of its authority in the years since its New Deal
retreat. As previously described, the Court did not stay in retreat for long;
rather, it shifted its ground to noneconomic liberties. Although many of its
decisions in the 1950s and 1960s were controversial at the time, over the long
term the Court seems to have established itself in a popular role as the primary
guarantor of civil liberties.221 And as such, it has been confident enough to move
from underenforcement of those norms to rigorous enforcement today.
Moreover, the Court seems to have succeeded not only in finding a new role
of enforcing noneconomic liberties, but also in translating that success into
expansion into other areas. Recent empirical work has concluded that the
liberal support that the Court generated with its decisions in favor of civil rights
215. Id. at 599.
216. THE FEDERALIST NO. 17, at 109 (Alexander Hamilton)
(J.E. Cooke ed., 1961)
217. Robert Mikos, The Populist Safeguards of Federalism, 68 OHIO ST. L.J. 1669, 1729 (2007).
218. See March J. Hetherington & John D. Nugent, Explaining Public Support for Devolution: The
Role of Political Trust, in WHAT IS IT ABOUT GOVERNMENT THAT AMERICANS DISLIKE? 134, 134–35
(John R. Hibbing & Elizabeth Theiss-Morse eds., 2001).
219. FRIEDMAN, supra note 18, at 357.
221. See POWE, supra note 177, at 875; MCCLOSKEY, supra note 29.
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 195
is at least somewhat “portable”—that is, the Court has managed to hold that
support even as it has become more conservative and shifted its attention away
from civil rights enforcement.222 Even the Court’s award of the presidency to the
Republican candidate in 2000 seems to have had merely transitory effects not
only on public support for the Court generally, but even on support among
liberals.223 In any event, the Court has been sufficiently confident to expand
relatively aggressive constitutional review into many areas of separation of
powers,224 even at the risk of direct conflict with the national political branches.
To the extent that underenforcement of constitutional principle reflects the
Court’s lack of confidence vis-à-vis the political branches, these trends suggest
that the post-1937 “double standard” may not last forever. That standard
reflected an effort by the Court to develop new areas of judicial review while
respecting the national political branches’ primacy with respect to the old
preoccupations of federalism and economic liberty. But as the Court has
recovered its standing, that double standard has begun to erode. Most
obviously, the Rehnquist Court’s “federalist revival” began—albeit extremely
cautiously—a reentry into the field of federalism-based restraints on national
authority. And, as I have noted, the Court has even made some forays back into
the sensitive territory of economic rights.225 More recent cases undermine the
very existence of a double standard between economic and “personal” rights—
in Sorrell v. IMS Health, Inc., for example, the Roberts Court aggressively
applied free speech principles (typically seen as “personal”) to invalidate state
healthcare legislation,226 and that decision has already spurred similar
speechbased challenges to federal regulation of the prescription drug industry.227
222. See Manoj Mate & Matthew Wright, The 2000 Presidential Election Controversy, in PUBLIC
OPINION AND CONSTITUTIONAL CONTROVERSY 333, 349 (Nathaniel Persily, Jack Citrin, & Patrick J.
Egan eds., 2008). During the Warren years, the Court defined itself as a guardian and arbiter of
individual rights and civil liberties. Although the Rehnquist Court was on balance a more conservative
Court, in some areas it followed the Warren Court in continuing to uphold and protect core individual
rights and civil liberties. Many liberals continue to support that vision even as the Court has become
more conservative in recent years.
223. See id. at 348. At least outside the law schools, of course.
224. See, e.g., Clinton v. City of New York, 524 U.S. 417 (1998); Clinton v. Jones, 520 U.S. 681
(1997); INS v. Chadha, 462 U.S. 919 (1983); United States v. Nixon, 418 U.S. 683 (1974).
225. See, e.g., Eastern Enters. v. Apfel, 524 U.S. 498 (1998) (striking down a federal statutory
provision imposing retroactive costs on companies that had been in the coal business on a combination
of Takings Clause and Due Process theories); BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996)
(striking down a state court punitive damages award as excessive on a substantive due process theory);
Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (holding that a South Carolina restriction on
development of beachfront property amounted to a regulatory taking).
226. 131 S. Ct. 2653, 2659 (2011); see also Ernest A. Young, Sorrell v. IMS Health and the End of the
Constitutional Double Standard, 36 VT. L. REV. (forthcoming 2012) (discussing broader implications of
227. See generally Kate Greenwood, The Ban on Off-Label Promotion after Sorrell v. IMS Health,
HEALTH REFORM WATCH (Aug. 3, 2011),
http://www.healthreformwatch.com/2011/08/03/the-ban-onoff-label-promotion-after-sorrell-v-ims-health/; Lisa Blatt, Jeffrey Handwerker, John Nassikas & Kirk
Ogrosky, Does Sorrell v. IMS Health Mark the End of Off-Label Promotion Prosecution?, 9
PHARMACEUTICAL L. & INDUS. REPORT 909 (2011), http://www.arnoldporter.com/resources/
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
The post-New Deal settlement prescribing broad judicial deference to the
political branches on matters of federalism and economic rights is a product of a
wounded Supreme Court, humbled by its confrontation with the political
branches during the Depression. The Court initially recovered its confidence by
expanding judicial review in areas that did not implicate the old sore points. But
now the Court has established itself as the critical champion of liberty in cases
like Brown, Brandenburg, and Mapp, and it has successfully extended that role
into policing the national separation of powers228 and the democratic process
itself.229 Why should we assume that a Court with a reconstructed sense of
legitimacy, staffed by justices with no direct memory of the New Deal crisis,
would continue to view principles of federalism and economic liberty as
requiring unusual degrees of doctrinal caution? It seems likely that the Court’s
expanded confidence will ultimately tell across the board.
We have few reliable tools, unfortunately, for gauging prospectively how
changing public attitudes are likely to affect the Court’s exercise of judicial
review. It is particularly hard to know what it would take to prompt the Court
to reconsider its general deference toward the political branches on basic
questions like the scope of the Commerce Clause. One can imagine, however,
more limited shifts in particular areas. For example, consider a hypothetical
scenario involving the Court’s state sovereign immunity jurisprudence. Previous
periods of judicial activism in this area have always coincided with serious state
debt crises. The Eleventh Amendment itself was ratified in response to
Chisholm v. Georgia, which decided that the States could be held accountable
in federal court for their Revolutionary War debts.230 Likewise, the expansion of
state sovereign immunity to cover federal question cases, as part of a new wave
of Eleventh Amendment decisions, responded to another massive debt crisis
involving the States’ Reconstruction-era bonds.231 Arguably, the Rehnquist
Court’s aggressive foray into state sovereign immunity law in the 1990s232 came
15 years too early, before there was a policy need to support the Court’s
aggressive protection of the states’ public fiscs. Congress responded by pushing
back hard, repeatedly seeking to rewrite federal statutes to get around state
sovereign immunity.233 And the Court backed down, at least to some extent,
moderating its jurisprudence on abrogation of state sovereign immunity
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 197
substantially in the Rehnquist Court’s last years.234
With the States now financially on the ropes, however, the need to protect
them from private damages liability makes somewhat more sense. Moreover,
the public may well perceive the States as more financially responsible than the
national government in light of recent brinksmanship over the federal debt
ceiling. To the extent that people react in this way, the public might support
greater financial protections for states if the Court should seek to further
extend its sovereign immunity caselaw.235 Or they might not, of course. It is
much easier to say that the Court is not indifferent to shifts in public opinion
than it is to say what the Court will do in response.
The public has views not only on general matters of federalism and judicial
review, but also on particular constitutional issues—like the constitutionality of
the ACA itself. A recent USA Today/Gallup poll found that “Americans
overwhelmingly believe the ‘individual mandate’ . . . is unconstitutional, by a
margin of 72% to 20%. Even a majority of Democrats, and a majority of those
who think the healthcare law is a good thing, believe that provision is
unconstitutional.”236 Similarly, a poll conducted last year by the Associated
Press and the National Constitution Center asked respondents whether “the
Federal Government should have the power to require all Americans to buy
health insurance, and to pay a fine if they don’t.” Only 16 percent of
respondents said that the Federal Government should have that power, and 82
percent said that it should not.237
These are pretty striking numbers, but the ACA’s defenders tend to dismiss
such attitudes as some kind of false consciousness. Andrew Koppelman, for
instance, asserts that “[t]he unconstitutionality of health care reform is another
of those [urban] legends [propagated by the Republican Party], legitimated in
American culture by frequent repetition.”238 Contemporary scholarship on
popular constitutionalism, however, has taught us that constitutional scholars
indulge in this sort of condescension toward our fellow citizens at our peril. In
any given case, the Court may surprise or even defy the popular will, and that
234. See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006); Tennessee v. Lane, 541 U.S. 509
(2004); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).
235. Cf. Coleman v. Court of Appeals of Maryland, 2012 U.S. Lexis 2315 (Mar. 20, 2012)
(distinguishing Hibbs and holding that state sovereign immunity barred suits under the self-care
provision of the Family and Medical Leave Act).
236. Jeffrey M. Jones, Americans Divided on Repeal of 2010 Healthcare Law, GALLUP POLITICS
(Feb. 27, 2012),
237. THE AP-NATIONAL CONSTITUTION CENTER POLL (Aug. 2011),
20story.pdf. Two percent were unsure. Id. When the same question was asked a year earlier, 17% said
the federal government should have that power, and 83% said that it should not. Id. The AP’s question
was, of course, normative, while the Gallup poll solicited a legal judgment. It seems unlikely, however,
that the laypeople responding to the two polls would have differentiated too sharply between them.
The AP question was, after all, directed to the question of federal power, not to whether the individual
mandate was a good idea overall.
238. Koppelman, supra note 11, at 23.
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
may well happen with the ACA cases. But over time, “Supreme Court decisions
tend to converge with the considered judgment of the American people.”239
Certainly it is not obvious that the Court needs to continue to defer to broad
assertions of national power when broad majorities of the American people
distrust national institutions and already believe the ACA to be
D. The States
One important and frequently overlooked aspect of the healthcare debate as
an episode of popular constitutionalism is the role of state governments. State
opposition to the ACA has taken a number of forms. Most obviously, states are
the primary parties challenging the ACA’s constitutionality in court. Wholly
apart from their prospects of success on the merits, these suits serve as a vehicle
for articulating an alternative view of constitutional meaning from that
embodied in the ACA. In this sense, the States’ role in the ACA litigation
parallels Virginia’s and Kentucky’s challenge to the Alien and Sedition Acts in
the early Republic, which articulated a more libertarian conception of free
speech and a more limited view of national authority.240 More recent parallels
would include the many state and local resolutions condemning aspects of the
USA PATRIOT Act as unduly infringing civil liberties,241 as well as state efforts
to enforce or exempt themselves from federal immigration policies by either
enforcing federal law more vigorously than the federal executive has been
willing to do, opting out of federal immigration programs like the “Secure
Cities” initiative that the states consider unfair, or providing sanctuaries for
certain types of aliens in circumstances where federal law makes no exception.242
States have also pursued a variety of bureaucratic strategies that we might
group under the label of “uncooperative federalism.”243 At least twenty states,
for example, have declined to participate in the portion of the ACA that enlists
them to create a high-risk insurance pool, thereby requiring federal authorities
undertake that task.244 To the extent that the success of the federal healthcare
regime depends on state cooperation and implementation, this sort of
“pushback” is likely to be a highly effective means for reshaping federal policy,
especially at the level of institutional detail. And while much of the state
bureaucratic resistance is likely to focus on pragmatic objections to particular
aspects of the national program, such resistance can also be a vehicle for
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 199
limiting national control on federalism grounds or enlarging the scope of
individual liberty allowed under the Act.
States may be a particularly salutary institutional vehicle for popular
constitutionalism, especially in comparison with social movements,
nongovernmental organizations, and political parties. Social movements are
typically dominated by organizations and individuals that may or may not have
robust internal mechanisms of accountability. Even political parties have
traditionally figured in our law as private associations; possess constitutional
rights but are not easily regulated to ensure accountability to their members.245
States, by contrast, are themselves democratic governments subject both to
popular accountability and constitutional norms. The recent re-election
campaign of Texas Attorney General Greg Abbott, for example, featured a
public debate concerning whether Texas’s participation in various lawsuits
resisting national encroachments—including the ACA litigation—actually
reflected Texans’ views and was a good use of the State’s resources.246 If states
do have important advantages as vehicles for constitutional contestation, then
efforts to construe standing doctrine broadly to exclude state parties from
litigation like the ACA challenges247 are dangerously misguided.
States also facilitate popular constitutionalism in a broader sense. When
constitutional or political constraints preclude homogenizing legislation at the
national level, national inaction leaves the individual states as sites for political
and constitutional contestation. We still see, for example, considerable diversity
on healthcare policy among the states notwithstanding the ACA. Ohio has just
voted to repudiate the individual mandate,248 while Vermont has resolved to
move beyond the ACA to a single-payer state healthcare system.249 Fledgling
social movements may find it easier to influence one or two states than the
national government, and the opportunity to test out their vision in one or two
jurisdictions may in turn enhance the persuasiveness of their message.250 In this
important sense, federalism enhances the opportunities for, and diversity of, a
national conversation regarding constitutional meaning.
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:157
Justice Ginsburg has observed that judges “do not alone shape legal
doctrine but . . . they participate in a dialogue with other organs of government,
and with the people as well.”251 Although legal theory has become intensely
interested in the phenomenon of popular constitutionalism over the past decade
or two, we are a long way from any sort of rigorous understanding of how social
movements like the Tea Party, public opinion at large, and judicial
decisionmaking interact. We simply know that these interactions matter. What I
have tried to do in this essay is to link popular constitutionalism to the
phenomenon of underenforcement of constitutional norms through judicial
doctrine. My basic point is a simple one: Underenforcement reflects the Court’s
views of its own institutional capacity to define and enforce constitutional
principles vis-à-vis other branches of the government and the People at large.
As such, underenforcement is historically contingent; even though
constitutional principle endures, different principles may be over- and
underenforced at different times, depending on historical circumstances. And as
political circumstances and attitudes change, constitutional doctrine is likely to
change with them.
We should keep the historically contingent nature of underenforcement in
mind as we think about the Affordable Care Act. The constitutional debate
over the individual mandate has—regrettably—gotten a little chippy. In a
popular online essay, Andrew Koppelman has pronounced that “[t]he
constitutional objections [to the ACA] are silly,” and that any adverse ruling on
the ACA by the Court could only be an illegitimately political effort by “the
conservative majority on the Court . . . to crush the most important progressive
legislation in decades.”252 Similarly, Peter Smith has asserted that “[s]muggling a
libertarian-based limitation into constitutional law by concealing it in the garb
of federalism . . . can only deepen the suspicions of those who already view
arguments about federalism as simply a guise for some other policy agenda.”253
Professor Smith then proceeds to recycle the old canard purporting to link
contemporary advocates of federalism to Southern segregationist policies of the
last century.254 The implication seems to be that the constitutionality of the
251. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 11
252. Koppelman, supra note 11, at 2.
253. Smith, supra note 11, at 1746.
254. See id. at 1746–47 (finding in arguments against the ACA by Virginia and other parties “an
eerie echo” of a segregationist brief filed by the Commonwealth in Heart of Atlanta Motel v. United
States); see also id. at 1746 (citing, as support for the suggestion that ACA opponents have “some other
policy agenda,” a statement by Barry Friedman likening proponents of state autonomy to “foaming
segregationists cursing civil rights marchers”) (quoting Barry Friedman, Valuing Federalism, 82 MINN.
L. REV. 317, 384 (1997)); FOLEY, supra note 47 , at 30–32 (collecting examples of statements suggesting
that opposition to the ACA is motivated by “thinly veiled racism”). It really is surprising that this
canard persists, seventeen years into a vibrant intellectual debate about federalism engendered by the
Supreme Court’s revival of the Commerce Clause in Lopez. See, e.g., David J. Barron, Reclaiming
Federalism, Dissent, Spring 2005, available at http://dissentmagazine.org/article/?article=249 (last visited
No. 3 2012] POPULAR CONSTITUTIONALISM AND UNDERENFORCEMENT 201
ACA is so clear that only stupid people—or bad ones—could disagree.
But the ACA’s critics are not stupid, much less segregationist. Neither are
the American people, three-quarters of whom believe the ACA to be
unconstitutional.255 Confident predictions about the outcome of the ACA
litigation rest on judicial doctrine, not the uncontested meaning of the
Constitution itself. The Supreme Court’s current doctrine underenforces
constitutional norms of federalism and economic liberty, and if that doctrine
remains intact, then it is hard to see how the ACA will not ultimately survive
the current challenges to its constitutionality. I have tried to show, however,
that underenforcement is a historically contingent phenomenon, and doctrine
that has shifted once can shift again. If the Court does shift ground, it will likely
be in response to various aspects of popular constitutionalism—that is, public
attitudes on federalism, economic liberty, and the role of the Court itself. In
each of these areas, there is reason to believe that public opinion has moved
away from key aspects of the New Deal settlement.
We would do well to remember that doctrine is historically contingent in a
way that the Constitution itself is not. And the movement of history is
unpredictable. The last decade and a half has witnessed a presidential
impeachment, a presidential election tie broken by the Supreme Court, a
massive terrorist attack on American soil, the worst financial meltdown since
the Great Depression, the embrace of gay rights by large majorities of
Americans, and the election of an African American President. We live in an
age of catastrophes and miracles, none of which many people saw coming. The
changing needs and views of the People will have their own impact on future
doctrinal shifts, and that impact is not easy to predict. To the extent that the
lawsuits challenging the ACA amount to a vehicle for articulating a different
view of constitutional meaning, they may well find a more receptive public
audience than they would have a decade or two ago. And if that happens, one
should not expect the current underenforced status of federalism, or possibly
even of economic liberty, to persist forever.
11. See , e.g., Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 YALE L.J. ONLINE 1 ( 2011 ), http://yalelawjournal.org/ 2011 / 04/26/koppelman.html; Peter J. Smith , Federalism, Lochner, and the Individual Mandate, 91 B.U. L. REV. 1723 ( 2011 ).
12. See , e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379 , 392 - 400 ( 1937 ) (upholding state minimum wage legislation against a freedom of contract challenge); NLRB v. Jones & Laughlin Steel Corp ., 301 U.S. 1 , 34 - 46 ( 1937 ) (upholding provisions of the National Labor Relations Act against a Commerce Clause challenge); Gary Lawson, The Rise and Rise of the Administrative State , 107 HARV. L. REV. 1231 , 1232 ( 1994 ) (“The post-New Deal conception of the national government has not changed one iota, nor even been a serious subject of discussion, since the Revolution of 1937 .”).
13. Chemerinsky , supra note 10, at 3.
14. See , e.g., Lochner v . New York, 198 U.S. 45 ( 1905 ) (striking down a New York law limiting the hours of bakers on freedom of contract grounds); Allgeyer v . Louisiana , 165 U.S. 578 ( 1897 ) (striking down a Louisiana law regulating insurance on freedom of contract grounds); United States v . E.C. Knight Co., 156 U.S. 1 ( 1895 ) (limiting Congress's Commerce Clause authority to matters that directly affected buying and selling across state lines).
15. See Plessy v. Ferguson , 163 U.S. 537 ( 1896 ) (upholding a law providing for “separate but equal” accommodations for white and black persons on trains).
16. Engel v. Vitale , 370 U.S. 421 ( 1962 ), did not strike down the New York Regent's Prayer until 1962 .
17. See , e.g., Schenck v . United States , 249 U.S. 47 ( 1919 ) (upholding Schenck's conviction under the Espionage Act of 1917 for criticizing the military draft, notwithstanding his First Amendment challenge ).
22. U.S. CONST. art. I, § 8 .
23. 22 U.S. ( 9 Wheat. ) 1 , 195 ( 1824 ).
24. See id. at 204-06 (distinguishing Congress's power over commerce from the reserved power to enact quarantine and health laws).
25. See id. at 195 (“ The completely internal commerce of a State . . . may be considered as reserved for the State itself .”).
26. United States v. E.C. Knight, 156 U.S. 1 , 12 ( 1895 ) (“Commerce succeeds to manufacture, and is not a part of it .”).
27. See id. at 15-16 ( distinguishing between “direct” and “indirect” effects on interstate commerce).
28. See , e.g., ALPHEUS THOMAS MASON , The Role of the Court , in FEDERALISM: INFINITE VARIETY IN THEORY AND PRACTICE 8 , 24 - 25 (Valerie A. Earle ed., 1968 ); see also ANTHONY J. BELLIA, JR ., FEDERALISM 183 ( 2011 ) (“The dual federalism paradigm understands federal and state governments to operate in different spheres of authority .”).
29. Compare , e.g., ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 175 ( 1960 ) (ascribing the switch in the Court's stance to a combination of FDR's sweeping 1936 electoral victory, the outbreak of a new wave of labor disputes, and the court-packing plan), with BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 6
46. Daniel Fisher, Obamacare Judges Must Answer The “Broccoli Question”, FORBES, Nov. 18 , 2011 , http://www.forbes.com/sites/danielfisher/2011/11/18/obamacare-judges -must-answer-the-broccoliquestion/. Your humble author was once nearly thrown out of a Federalist Society gathering for allowing that Commerce Clause doctrine might not prevent Congress from ordering all Americans to eat broccoli, suggesting instead that any constitutional challenge to such a law would better rely on substantive due process, and admitting that current doctrine might not support that challenge either. For a similar conclusion, from someone that no one would dare throw out of a Federalist Society gathering, see The Constitutionality of the Affordable Care Act: Hearing Before the S. Com. on the Judiciary, 112th Cong . ( 2011 ) (statement of Charles Fried , Professor of Law, Harvard Law School).
47. Consider, for example, a legislative proposal in South Dakota to mandate that individuals purchase a firearm. The proposal is meant to dramatize the illegitimacy of forcing individuals to purchase health insurance, and the proponents appear to see no critical difference in the fact that this proposal comes from a state government, not from Congress. See South Dakota Lawmakers Propose Mandating Gun Ownership-To Make Point About Health Law , FOX NEWS (Feb. 1 , 2011 ), http://www.foxnews.com/politics/2011/02/01/sd-lawmakers -propose-mandating-gun-ownership-makepoint-health-law/.
Not everyone shares this view, however. For example, one of the leading articulations of Tea Party objections to the individual mandate distinguishes sharply between the ACA's mandate and governmental mandates requiring individuals to buy auto insurance: But is mandatory car insurance really analogous to mandatory health insurance under Obamacare? No, for this simple reason: the sovereign mandating car insurance is the state, not federal, government. And . . . the principle of limited government is a principle that applies to the federal government, not the state . ELIZABETH PRICE FOLEY , THE TEA PARTY: THREE PRINCIPLES , 37 ( 2012 ). Professor Foley goes on
59. See , e.g., FOLEY, supra note 47 , at 70 (“ The Florida Obamacare lawsuits assert that many provisions of health reform commandeer state officials. For example, states are required to collect data on the average risk of health insurance policies and assess a penalty (or reward) when insurers exceed (or undercut) the average .”). Related arguments emphasize the spending obligations imposed by the Act . See id. (“[States] also argue that, because expanding Medicaid eligibility to 133 percent of the federal poverty level dramatically increases costs of running a Medicaid program, states are effectively forced to devote billions more dollars at a time when state budgets are stretched to capacity .”).
60. See Printz v. United States , 521 U.S. 898 , 935 ( 1997 ); New York v. United States , 505 U.S. 144 , 178 ( 1992 ).
61. See , e.g., Lynn A. Baker , Conditional Spending after Lopez , 95 COLUM. L. REV. 1911 ( 1995 ).
62. South Dakota v. Dole , 483 U.S. 203 , 207 - 08 ( 1987 ).
63. See , e.g., Amended Complaint , State of Florida, et al., v. U.S. Department of Health & Human Services, at 27 (May 14, 2010 ).
64. New York, 505 U.S. at 153-54.
65. See id. at 174-77 (discussing this provision).
66. See Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 , 1262 - 68 ( 11th Cir . 2011 ).
67. FOLEY, supra note 47, at 73-74.
68. Smith , supra note 11, at 1726.
69. Ann Althouse, The Vigor of Anti-Commandeering Doctrine in Times of Terror , 69 BROOK. L. REV. 1231 , 1274 ( 2004 ).
70. 521 U.S. 898 ( 1997 ).
71. 554 U.S. 570 ( 2008 ).
72. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act , Pub. L. No. 107 - 56 , 115 Stat. 272 ( 2001 ).
73. Althouse , supra note 69, at 1253-61.
74. 545 U.S. 1 ( 2005 ).
75. See generally Note, Last Resorts and Fundamental Rights: The Substantive Due Process Implications of Prohibitions on Medical Marijuana , 118 HARV. L. REV. 1985 ( 2005 ).
76. See Raich v. Gonzales , 500 F.3d 850 , 866 ( 9th Cir . 2007 ).
77. Gill v. Office of Pers. Mgmt. , 699 F. Supp . 2d 374 , 391 (D. Mass . 2010 ).
78. See Smith , supra note 11 , at 1743 (“[T] o be viable as a federalism-based limiting principle, the [libertarian objection] needs to bear some relationship to the very reasons why we divide authority between the federal government and the states in the first place .”).
79. See Siegel, supra note 50; Cooter & Siegel, supra note 41.
80. Smith , supra note 11, at 1737-46.
81. See Althouse, supra note 69 , at 1250; Abigail R. Moncrieff , Cost-Benefit Federalism : Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and 83 . Id . (quoting New York v. United States , 505 U.S. 144 , 181 ( 1992 )).
84. THE FEDERALIST No. 51 , at 351 ( James Madison) (Jacob E . Cooke ed. 1961 ) ; see also Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK . L. REV. 1277 , 1284 - 91 ( 2004 ) (discussing the ways in which federalism protects liberty).
85. FOLEY, supra note 47, at 23.
86. See , e.g., Larry Lessig , Translating Federalism: United States v . Lopez , 1995 SUP. CT. REV . 125 , 196 - 97 (“ Realist limits [that is, “attempts to track what federalism was really meant to protect”] can never effect effective judicial limits on governmental power . . . . If limits are to be found, they must be made . And if they are to be made, they will be made only with the tools of a sophisticated formalism .”).
87. See , e.g., Kathleen M. Sullivan , The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards , 106 HARV. L. REV. 22 , 58 ( 1992 ) (describing “rules” as captur[ing] the background principle or policy in a form that from then on operates independently” and “standards” as “tend[ing] to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation”).
88. See , e.g., Jack Balkin , Commerce, 109 MICH. L. REV. 1 ( 2010 ) (using a similar analysis to that developed by Professors Cooter and Siegel).
89. See , e.g., Moncrieff, supra note 81 , at 14 ( “Under the models for collective action federalism, the permissibility of congressional action depends on extremely difficult and extremely specific empirical evaluations of the costs, benefits, and externalities of each and every regulatory question (not
100. 17 U.S. 316 , 352 - 60 ( 1819 ).
101. For this reason, President Andrew Jackson's subsequent veto of the Bank on constitutional grounds did not necessarily represent a “disagreement” with McCulloch, but rather was an exercise of the authority that the Court had left with the political branches. McCulloch held, in other words, that the political branches get to decide whether a Bank is “necessary”-not that the Bank is necessary. President Jackson, speaking for the Executive Branch, was willing to say that it was not . See ARTHUR M. SCHLESINGER , JR., THE AGE OF JACKSON 88-92 ( 1945 ).
102. United States v. Lopez , 514 U.S. 549 , 604 ( 1995 ) (Souter, J., dissenting) (quoting FCC v. Beach Commc'ns, Inc ., 508 U.S. 307 , 314 ( 1993 )).
103. Lopez , 514 U.S. at 604.
104. Frederick Schauer , Easy Cases, 58 S. CAL. L. REV . 399 , 399 - 408 ( 1985 ).
105. See U.S. CONST. art. II, § 1, cl. 5 (stating that “neither shall any person be eligible to that office who shall not have attained to the age of thirty five years”).
106. See Cass R. Sunstein , Incompletely Theorized Agreements, 108 HARV. L. REV. 1733 , 1733 - 42 ( 1985 ).
107. 22 U.S. ( 9 Wheat. ) 1 , 187 - 239 ( 1824 ). I am using Gibbons, of course, precisely because it is so frequently cited by nationalists to justify a broad vision of national legislative authority .
129. See CUSHMAN , supra note 29, at 104-05 , 154 - 55 .
130. 381 U.S. 479 , 484 - 86 ( 1965 ).
131. For Judge Bork's critique, see Robert H . Bork, Neutral Principles and Some First Amendment Problems , 47 IND. L. REV. 1 ( 1971 ). See also FRIEDMAN, supra note 18, at 317 (citing Bork's opposition to Griswold as one of the “main issues” triggering opposition to his nomination).
132. See , e.g., Lawrence v. Texas , 539 U.S. 558 , 564 - 79 ( 2003 ) (recognizing a right to engage in gay sex under the Due Process clause ).
133. BMW of N. Am., Inc. v. Gore, 517 U.S. 559 , 563 - 74 ( 1996 ).
134. Int'l Shoe Co . v. Washington, 326 U.S. 310 , 316 ( 1945 ).
135. See , e.g., Elkins v . United States , 364 U.S. 206 , 222 ( 1960 ) (“[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures .”).
136. See , e.g., Kennedy v . Louisiana , 554 U.S. 407 ( 2008 ) (holding that capital punishment for child rape violates the Eighth Amendment); Roper v . Simmons , 543 U.S. 551 ( 2005 ) (striking down the juvenile death penalty under the Eighth Amendment); Atkins v . Virginia , 536 U.S. 304 ( 2002 ) (holding that executing the mentally disabled violates the Eighth Amendment) .
140. See generally MCCLOSKEY , supra note 29 , at 96-117.
141. 165 U.S. 578 , 590 - 92 ( 1897 ).
142. 198 U.S. 45 , 64 ( 1905 ).
143. See , e.g., Pierce v . Soc'y of Sisters , 268 U.S. 510 , 534 - 35 ( 1925 ); Meyer v. Nebraska , 262 U.S. 390 , 399 ( 1923 ).
144. See CUSHMAN , supra note 29; Tony A. Freyer , Book Review, Brandeis and the Progressive Constitution: Erie, The Judicial Power, and the Politics of the Federal Courts in Twentieth Century America by Edward A . Purcell , Jr., 18 CONST. COMMENT. 267 , 270 n. 8 ( 2001 ) (“The objective fact that the Lochner era had a low rate of invalidation has been noted by historians and lawyers for some time .”).
145. See , e.g., Lochner , 198 U.S. at 59 (“ There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?”).
146. See , e.g., Shreveport Rate Cases , 234 U.S. 342 , 350 - 55 ( 1914 ).
147. United States v. E.C. Knight Co., 156 U.S. 1 , 13 - 18 ( 1895 ).
148. Stafford v. Wallace , 258 U.S. 495 , 518 - 28 ( 1922 ).
149. E.C. Knight, 156 U.S. at 11-18.
157. See , e.g., Florida v. U.S. Dep't of Health & Human Servs ., 648 F.3d 1235 , 1328 - 65 ( 11th Cir . 2011 ) (Marcus , J., dissenting).
158. See , e.g., Brown v . Entm't Merchs . Ass'n, 131 S. Ct . 2729 , 2738 - 42 ( 2011 ) (striking down California's attempt to regulate violent videogames under a First Amendment strict scrutiny standard).
159. See , e.g., DAVID M. KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN DEPRESSION AND WAR, 1929 - 1945 , 379 ( 1999 ) (“Above all, the New Deal gave to countless Americans who had never had much of it a sense of security, and with it a sense of having a stake in their country .”).
160. See , e.g., Planned Parenthood v . Casey , 505 U.S. 833 , 862 ( 1992 ) (discussing the Lochner Court's failure to adapt constitutional doctrine to changing economic circumstances and concluding that “the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss”).
161. See generally Lynn Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 DUKE L .J. 75 , 80 - 85 ( 2001 ) (trying and failing ).
162. Some of the ACA's defenders have asserted that the Act's broad assertion of national power is faithful not only to the post-New Deal settlement but also to the Framers' original intent . See, e.g., Simon Lazarus , The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government , AM. CONST. SOC'Y 4 ( Feb . 2011 ), http://www.acslaw.org/ sites/default/ files/lazarus_-_ health_reform_lawsuits_0.pdf (“[I]t would be more accurate to view what libertarian critics call the New Deal Supreme Court's 'revolution of 1937' as a restoration of the vision of the original Framers, who sought to supplant the feckless Articles of Confederation with a charter for effective and responsive national governance .”). This assertion relies on broad language in Marshall Court decisions like McCulloch and Gibbons, see id., but of course those decisions upheld quite modest
165. See , e.g., Kenneth T. Cuccinelli , II , E. Duncan Getchell, Jr., & Wesley G. Russell , Jr., Why the Debate Over the Constitutionality of the Federal Health Care Law is About Much More than Health Care, 15 TEX . REV. L. & POL . 293 , 334 - 38 ( 2011 ) (essay, by the Virginia Attorney General and senior staff, grounding Virginia's suit challenging the ACA in a broader vision of limited government); but see id . at 295 (“ No existing doctrine needs to be curtailed or expanded for Virginia to prevail on the merits .”).
166. See , e.g., United States v . Jones , 132 S. Ct . 945 , 950 - 51 ( 2012 ) (relying on social conventions to define the meaning of a “search” under the Fourth Amendment); Planned Parenthood of Southeastern Pa . v. Casey, 505 U.S. 833 , 856 ( 1991 ) (relying on broad social understandings of the relationship between reproductive liberty and women's roles in considering the stare decisis force of Roe v . Wade).
167. See , e.g., Cuomo v . Clearing House Ass'n , L.L.C. , 129 S. Ct . 2710 , 2718 - 19 ( 2009 ) (interpreting the scope of preemption under the National Bank Act by reference to settled understandings that state agencies have authority to enforce state laws against state banks); Curtis A . Bradley & Trevor W. Morrison , Historical Gloss and the Separation of Powers , 126 HARV. L. REV. (forthcoming 2012-2013) (exploring the degree to which settled practice defines the constitutional separation of powers).
168. See , e.g., Dukes v . Wal-Mart, Inc., 131 S. Ct . 2541 ( 2011 ) (noting, in holding that the trial court improperly certified a class action under Federal Rule of Civil Procedure 23 , that “[w]e are presented with on of the most expansive class actions ever”); Morrison v . Olsen , 487 U.S. 654 , 681 ( 1988 ) (resolving whether Congress may vest certain powers concerning independent counsel in the courts by determining that those powers were analogous to other powers the courts had long exercised).
169. See , e.g., Tribe, supra note 9; Chemerinsky, supra note 10 , at 3. Indeed , Dean Chemerinsky's essay for this symposium undertakes to preemptively “spin” a possible Supreme Court decision striking down the ACA as the next Bush v . Gore. See id. at 2 ; see also Koppelman, supra note 11 , at 1 (making a similar attempt to spin an adverse Supreme Court ruling on the ACA as nothing more than partisan politics).
170. Brown v. Bd. of Educ , 347 U.S. 483 ( 1954 ).
171. See , e.g., Mapp v . Ohio , 347 U.S. 643 ( 1961 ).
172. See , e.g., Reynolds v . Sims , 377 U.S. 533 ( 1964 ).
173. See , e.g., Griswold v . Connecticut , 381 U.S. 479 ( 1965 ) ; see generally FRIEDMAN, supra note 18 at 300 (narrating the transformation of the Court's role) .
174. Cf ., e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379 ( 1937 ).
175. Korematsu v. United States , 323 U.S. 214 ( 1944 ) ; see also Ex parte Quirin, 317 U .S. 1 ( 1942 ).
176. Youngstown Sheet & Tube Co . v. Sawyer, 343 U.S. 579 ( 1952 ).
177. See LUCAS A. POWE, JR ., THE WARREN COURT AND AMERICAN POLITICS 75-103 ( 2000 ) (describing the Warren Court's national security cases).
178. See Boumediene v. Bush , 553 U.S. 723 ( 2008 ); Hamdan v . Rumsfeld , 548 U.S. 557 ( 2006 ) ; see FRIEDMAN, supra note 18, at 341 (discussing the Court's assertiveness in the terrorism cases ).
179. Jack M. Balkin , How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure, 39 SUFFOLK U . L. REV. 27 , 30 ( 2005 ).
180. Id . at 32.
181. Jack M. Balkin & Sanford Levinson , Understanding the Constitutional Revolution , 87 VA. L. REV. 1045 , 1067 ( 2001 ).
182. Balkin , supra note 179, at 32.
183. Id . at 34.
184. Id . at 32-33.
185. See generally FOLEY , supra note 47 , at 1 -19 (describing the Tea Party's origins and general principles); Ilya Somin , The Tea Party Movement and Popular Constitutionalism , 105 NW. U. L. REV. 300 ( 2011 ) (situating the Tea Party within broader theoretical discussions of popular constitutionalism and social movements).
186. See , e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM
191. Rebecca E. Zietlow , Democratic Constitutionalism and the Affordable Care Act , 72 OHIO ST. L .J. 1367 , 1367 ( 2011 ).
192. It is not just the Tea Party-whatever we make of them-that is increasingly discontented with federal authority. Once we move beyond the particular issue of healthcare, much of the discontent comes from the political Left as well as the Right . At various times in the past decade, progressive proponents of environmental protection and gay rights, as well as opponents of the War on Terror, have all pressed reform at the state level during periods when federal policy was contrary to their goals . See generally Young , Dark Side, supra note 84.
193. FOLEY, supra note 47 , at xiii.
194. See id.; Rebecca M. Zietlow , Popular Originalism? The Tea Party Movement and Constitutional Theory 5-6 (U. Toledo Legal Stud ., Research Paper No. 2011 - 09 , 2011 ).
195. FOLEY, supra note 47, at xiii.
196. Somin , supra note 185, at 309.
197. Id . at 304.
198. See , e.g., Adam Liptak , Tea-ing Up the Constitution , N.Y. TIMES , Mar. 13 , 2010 , at WK1.
199. FOLEY, supra note 47, at viii; see also Barnett, Tea Party, supra note 20 (“The Tea Party . . . has resisted any interest in forming a third party, seeking instead to take over the Republican Party by organizing at the local level and backing challengers to incumbents in primaries .”).
200. Richard Albert, The Constitutional Politics of the Tea Party Movement , 105 NW. U. L. REV.
206. David C. Thompson & Melanie F. Wachtell , An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 GEO . MASON L. REV. 237 , 276 - 77 ( 2009 ) (discussing the influence of the Solicitor General on the Supreme Court's decisions to grant or deny certiorari).
207. See , e.g., Joseph D. Kearney & Thomas W. Merrill , The Influence of Amicus Curiae Briefs on the Supreme Court , 148 U. PA. L. REV . 743 , 772 - 74 ( 2000 ) (collecting studies on the influence of amicus briefs filed by the Solicitor General) .
208. See generally Daniel J. Meltzer, Lecture: Executive Defense of Congressional Acts , 61 DUKE L. J. 1183 ( 2012 ).
209. Final decision on the constitutional issues could be postponed, for example, if the Court decides that the Tax Anti-Injunction Act , 26 U.S.C. § 7421 (a) ( 2006 ), precludes pre-enforcement review of the individual mandate. See Seven-Sky v . Holder, 661 F.3d 1 , 21 -23 (D.C. Cir . 2011 ) (Kavanaugh , J., dissenting).
228. See , e.g., Boumediene v . Bush , 553 U.S. 723 ( 2008 ); Clinton v . City of New York, 524 U.S. 417 ( 1998 ).
229. See , e.g., Citizens United v . FEC , 130 S. Ct . 876 ( 2010 ); Bush v . Gore , 531 U.S. 98 ( 2000 ) ; Cal. Democratic Party v . Jones , 530 U.S. 567 ( 2000 ) ; see generally Richard A . Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics , 118 HARV. L. REV. 29 ( 2003 ) (discussing the Supreme Court's increasing intervention in the democratic process ).
230. 2 U.S. ( 2 Dall.) 419 ( 1793 ).
231. See Hans v. Louisiana , 134 U.S. 1 ( 1890 ).
232. See , e.g., Alden v . Maine , 527 U.S. 706 ( 1999 ) ; Seminole Tribe v . Florida , 517 U.S. 44 ( 1996 ).
233. See , e.g., Mitchell N. Berman, R. Anthony Reese , & Ernest A. Young, State Accountability for Violations of Intellectual Property Rights: How to “Fix” Florida Prepaid (And How Not To ), 79 TEX. L. REV. 1037 , 1048 ( 2001 ) (discussing Congress's attempt to abbrograte state sovereign immunity in the intellectual property area in response to prior court decisions).
239. FRIEDMAN, supra note 18, at 14.
240. See , e.g., Wayne D. Moore , Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 CONST . COMMENT. 315 , 319 - 41 ( 1994 ).
241. See generally Althouse, supra note 69 , at 1233.
242. See generally Christina M. Rodriguez , The Significance of the Local in Immigration Regulation , 106 MICH. L. REV. 567 ( 2008 ).
243. See generally Jessica Bulman-Pozen & Heather K. Gerken , Uncooperative Federalism, 118 YALE L.J. 1256 ( 2009 ).
244. See Elizabeth Weeks Leonard , Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 39 HOFSTRA L . REV. 110 , 116 - 17 ( 2010 ).
245. See , e.g., Cal. Democratic Party v. Jones , 530 U.S. 567 ( 2000 ).
246. Chuck Lindell , Texas Attorney General Greg Abbott opposes federal government on many fronts , AUSTIN AMERICAN-STATESMAN, Aug . 7, 2010 , http://www.statesman.com/news/texaspolitics/texas-attorney- general-greg-abbott-opposes-federal-government-847623 .html?printArticle=y.
247. Virginia ex rel . Cuccinelli v. Sebelius , 656 F.3d 253 , 267 - 72 ( 4th Cir . 2011 ).
248. See Aaron Marshall, Ohio Voters Say No to Health Insurance Mandates, Older Judges , CLEVELAND PLAIN DEALER, Nov. 9 , 2011 , http://www.cleveland.com/politics/index.ssf/ 2011 /11/ohio_voters_say_no_to_ health_i.html.
249. See Zach Howard, Vermont Single-Payer Health Care Law Signed by the Governor , REUTERS, May 26 , 2011 , available at http://www.huffingtonpost.com/ 2011 /05/26/vermont-health -care-reform-lawsingle-payer_n_867573.html .
250. See Heather K. Gerken , Dissenting by Deciding, 56 STAN. L. REV. 1745 ( 2005 ).