Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law

TLDR: In this article, the authors look at the constitutionality of the Affordable Care Act (ACA) through the lens of underenforcement and argue that popular constitutionalism influences which norms are underenforced at any given time.

Abstract: Contemporary constitutional theory distinguishes between constitutional meaning and the doctrines that courts develop to enforce that meaning. This conceptual gap recognizes the possibility that, at any given time, extant doctrine will "underenforce" particular constitutional norms -- that is, the doctrinal tests by which courts decide cases will not protect those norms to their full conceptual limits. This essay looks at the constitutionality of the Affordable Care Act (ACA) through the lens of underenforcement. I suggest that since 1937, constitutional doctrine has underenforced constitutional limits on the Commerce and Spending Clause, as well as (perhaps) principles of economic liberty. But underenforcement is historically contingent; in 1920, for example, extant doctrine enforced all those principles more rigorously while underenforcing others, such as equal protection and freedom of speech. I argue that popular constitutionalism influences which norms are underenforced at any given time. Historical changes in popular perceptions of the appropriate role of government, and the national government in particular, have encouraged underenforcement of limits on national power and principles of economic liberty. At the same time, the public's perception of the appropriate role of the Court also plays a role; hence, underenforcement in these areas arguably reflects the Court's sense that it had been overly aggressive in checking action by the political branches in the period leading up to 1937. But in the early 21st century, popular understandings may be changing on both these fronts. The Tea Party movement is just one manifestation of a wider sense that the role of government has limits, and the Court has regained much of its prestige by developing its role as protector of individual rights. The point is that what has changed once can change again. The healthcare law seemed obviously constitutional to many observers based on current doctrinal tests, but those tests themselves reflect contingent historical factors. Although this essay was written before the Court decided the ACA case, it anticipates the Court's willingness to reopen basic questions concerning the scope of judicial review on questions of national power.