From the ConLawList Serve.

Rebecca Zietlow (Toledo):

Rebecca Zietlow (Toledo): Even if this case is close, that is a huge victory for the popular constitutionalism of the right, making distinctions that resonate strongly in political terms but weakly in terms of established constitutional precedent.  In the questioning, the Justices echoed the political rhetoric.  Broccoli was apparently mentioned 8 times in the oral argument over the individual mandate.  Look, I’m one of the biggest fans out there of popular constitutionalism, but I still am concerned when I see the Court  appearing so blatantly political.

Am I the only one who will be disturbed if this landmark statute supported by Democrats is struck down on a partisan 5-4 vote with Republican appointed justices echoing the Tea Party in their opinions?  I hope I’m wrong, but this case is starting to look to me like Justice Roberts’ Bush v. Gore.

Ira Lupu (GW):

The puzzle for me, Rebecca, is why you are “one of the biggest fans out there of popular constitutionalism.” Wasn’t the oral argument yesterday a perfect illustration of how “popular constitutionalism” might work? If the Congress can process “popular constitutionalism” when it enforces the 14th A under section 5, why can’t the Court do the same thing when it considers what appears to some as a matter of first impression under the Commerce Clause? On this issue, it was not difficult to discern what Tea Party constitutionalists thought about the ACA.

Rebecca Zietlow (Toledo):

I agree that the oral argument was a great example of popular constitutionalism. In fact, that was the point that I was trying to make. There is a big difference between Congress and the Court embracing popular constitutionalism. Congress is politically accountable, and their decision making process is relatively transparent (compared to the judicial process, which is not transparent at all). Congress is supposed to respond to political advocacy. The courts are theoretically supposed to be insulated from political pressure. I’ve written about these institutional differences in my book, Enforcing Equality: Congress, the Constitution and the Protection of Individual Rights. By its nature, popular constitutionalists are going to stretch their constitutional arguments to achieve political goals. I feel a lot less comfortable when judges stretch their legal arguments to achieve political goals because of their lack of transparency and accountability, and because, frankly, I don’t think that is what judges are supposed to do. I know, I know, judges behave politically all the time. That’s why I said that I was like the inspector at Casablanca. But this case does seem to be a rather extreme example.

Zietlow:

t is also notable that during debates over the act, opponents expressed the same positions in opposition that are being expressed by its litigation over the constitutionality of the act, including the argument that it unduly intrudes on states’ autonomy and individual liberty.  The well-publicized demonstrations of the Tea Party movement failed to sway the congressional debate.  In the 2010 battle ofpopular constitutionalism, the opponents lost and those supporting the right to health care prevailed.

Why does this matter?  It matters because it bolsters the argument that Congress acted rationally when enacting the ACA.  It’s also important to remember that not just the right to individual liberty, but also the right to health care, is at stake in this landmark case.  Thus, this act falls within the great tradition of Congress weighing liberty versus equality rights, and voting on the side of equality rights, including the 1964 Civil Rights Act, the National Labors Relations Act, etc.  The ACA is a rights-protecting statute, and as such, is entitled to the deference of the Supreme Court.

For a more detailed articulation of my argument, see my recent post on Balkinization or my Ohio State Law Journal article, DemocraticConstitutionalism and the Affordable Care Act at  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2000924.