This is the introduction of an article I am publishing the Chapman Law Review symposium issue on libertarian thought, post-ACA. My topic went through a number of iterations. All versions focused on drawing lessons from the case. At first, I was focusing on lessons libertarians should draw, but realized that we can all learn a bit about what happened. Because, well, frankly it happened so fast and furious, I fear none of us were able to stop and smell the roses from the moment the ACA was signed into law, until the Chief Justice’s vote.
Anyway, here is the intro. I welcome any thoughts or comments. I should be able to post a full draft next week (And I am really tempted to do like a HuffPo style slideshow of the top five lessons. Aggregation!!!).
In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum, who were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds, were often unable to pause, and appreciate the monumental importance of what was happening. Libertarians, in particular, made a number of strategic decisions that went largely unappreciated in the runup to NFIB v. Sebelius. This article, as part of a symposium issue on libertarian legal thought, takes a step back, and draws five important lessons from The Health Cases.
First and second, we witnessed how conservatives and liberals reversed roles with respect to the propriety of judicial review. Since the New Deal, progressives generally supported a strong power of judicial review, favoring Courts boldly recognizing new rights, and striking down laws. In reaction and in response to what was deemed judicial activism, conservatives favored the philosophy of judicial restraint, aimed at deferring to the democratic process. However, leading up to NIFB v. Sebelius, constitutional lawyers entered something of a bizarro world. Conservatives rallied around the mantle of striking down a massively important, and very technical, democratically enacted piece of legislation. Liberals rediscovered a fealty to judicial restraint, and urged the courts-and indeed preemptively attacked the Justices–to consider what striking down the ACA would do to the Court’s legitimacy. In hindsight, this convenient switch speaks volumes about the superficiality of the entire judicial restraint/judicial activism divide.
Third, the reaction of conservative judges to this case revealed a jurisprudential fissure.
Earlier generations of conservative jurists, inculcated in the era of judicial restraint in response to the perceived excesses of the Warren Court, instinctively, and even reluctantly, refrained from striking down laws, out of a fear of disturbing the democratic process. The challenge to the Affordable Care Act further chiseled apart this dichotomy among conservative judges. The new generation of jurists, no longer duty bound by an unmitigated fealty to judicial restraint, are willing to engage the entire Constitution, through the exercise of the powers of judicial review. Randy Barnett has dubbed the earlier era of judges, typified by the likes of Robert Bork, as judicial conservatives, whereas the new generation of judges, led most prominently by Justice Thomas, are constitutional conservatives. As Barnett has noted, the vote of Chief Justice Roberts, and I would add those of Judges Brett Kavanaugh and Jeffrey Sutton, squarely fits in with the judicial conservatives, while the votes of Justice Scalia, Kennedy, Thomas, and Alito are those of constitutional conservatives. Recognizing the contributions of this new generation of jurists will further break down the historical aversion of conservatives to enforcing, and engaging the entire Constitution.
Fourth, libertarians, who for decades have sought to restore the original meaning of the Constitution, shied away from that task, largely without explanation, and advanced a strategy that would excise the individual mandate alone without disturbing any New Deal-era precedents. Rather than asserting an originalist challenge, libertarians, in league with conservatives, turned to appeals to popular constitutionalism, and led a concerted effort to create, and then draw attention to, the law’s unpopularity, and unconstitutionality. These two moves–the decision not to assert the originalist case for the unconstitutionality of the individual mandate, and to advance a popular constitutionalist argument–have largely gone unrecognized and unappreciated. Both of these choices speaks to the potential limitations of originalism in a world bound by entrenched precedents, and the potential strength of fostering social movements intent on restoring the lost constitution.
This observation leads to the last, and most important lesson– we learned a great deal about how important our Constitution is to we the people. Through such social movements, led by the Tea Party, society witnessed a rededication, however convenient, to the Constitution. We also witnessed the counter-mobilization to this movement, led by liberals, which presented an alternate–and equally convenient–view of the Constitution. Though, the Affordable Care Act was ultimately upheld, the greatest takeaway from that case was its contribution towards our collective constitutional culture. The growing sentiment that the powers of the federal government are in fact constrained, and the New Deal cases may not have definitively resolved these issues–what Larry Solum has referred to as the now “unsettled . . . constitutional gestalt”–may be the most important lesson we can draw from this entire unprecedented experience.