The Affordable Care Act Had A Constitutional Bullseye On It From Day One

September 8th, 2012

From the moment the ACA was enacted, most people surmised that it was on a collision course with the Supreme Court. Attorneys from Florida and Virginia filed complaints moments after the bill was signed. At the beginning, many assumed that such a constitutional challenge was farcical. How that understanding of the law changed is the subject of other works. My aim here, is to question whether there any other laws that were subject to a constitutional challenge from their very outsets.

Most of the Federalism Revolution cases from the 1990s concerned laws that were not too controversial from a constitutional perspective when enacted–such as the Violence Against Women Act, the Gun Free School Zones Act, or the Religious Freedom Restoration Act. The Controlled Substance Act–the subject of the Gonzales v. Raich, had been on the book for decades. The gun control statutes in D.C. and Chicago also had been on the books for years. These constitutional challenges were more haphazard, in the sense that the laws did not sustain a long-standing constitutional challenge.

The ACA, from even before its birth, had a constitutional bullseye on its back.

One big case comes to mind–the National Recovery Act, targeted by the Liberty League for a constitutional challenge from its beginning. Other New Deal legislation falls into this category. Perhaps the Civil Rights Act, which I know was subject to numerous¬†filibusters, followed by constitutional challenges.

Any other cases come to mind?

The fact that a law of such magnitude was so unpopular at its enactment, passed along straight partisan lines, provided a lot of ammunition to its ultimate near-demise.