In his foreword to a forthcoming symposium issue of Law & Contemporary Problems, Professor Neil Siegel observes that all Americans have at least a financial stake in the eventual outcome of court challenges to the Patient Protection and Affordable Care Act of 2010 (the ACA). The law represents the biggest expansion of the social safety net in more than 40 years, he writes; it intends to bring health insurance to approximately 95 percent of previously uninsured Americans and other lawful residents — more than 30 million people — and represents an attempt by Congress to gain control over mushrooming health care costs.
Siegel, who has focused much of his recent scholarship on the constitutionality of the minimum coverage provision, brought together a number of his Duke Law colleagues and other nationally prominent scholars last September to exchange insights on the ACA litigation from a range of perspectives. Titled “The Constitutionality of the Affordable Care Act: Ideas from the Academy,” and sponsored by the Program in Public Law, the conference was “inspired by the belief that legal academics who specialize in U.S. constitutional law, health law and policy, or statutory interpretation are making distinctive and important contributions to the national debate over the constitutionality of the ACA,” he explains.
The papers presented at the conference, including Siegel’s “Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision,” will be published in spring 2012 in Duke’s Law & Contemporary Problems, volume 75. A number of Duke Law scholars — including student scholar Bryan Leitch ’12 — have papers in the collection or have published scholarship relevant to health care reform.
The Supreme Court’s current doctrine underenforces constitutional norms of federalism and economic liberty. 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. … 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.”
— Ernest Young, Alston & Bird Professor of Law, “Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law”
Whether or not those who have raised concerns about bootstrapping in the [ACA] have put forward persuasive arguments against the legitimacy of the individual mandate, the problem is not the legitimacy of bootstrapping. If the final destination is impermissible, so be it. But that does not mean that the pathway should be abandoned as well.”
— Stuart Benjamin, Douglas B. Maggs Professor of Law, “Bootstrapping” (Benjamin defines “bootstrapping” broadly, as the situation where “an actor undertakes permissible action Y and thereby renders its action Z legally permissible.” Some critics of the ACA, for instance, argue that the law’s prohibition against denials of coverage based on pre-existing conditions “effectively necessitates an individual mandate, or something like it,” says Benjamin.)
If concerns about economic liberty, and activity versus inactivity, are implausible under current due process doctrine, as the Florida ruling unequivocally indicates, then why should such concerns, under the structural pieties of federalism, be sufficient to invalidate the considered judgment of democratic processes? In other words, is there a constitutional vision of federalism in the plaintiffs’ claims that is distinct from the decentralizing laissez-faire vision of economic substantive due process, such that a different outcome is compelled in this litigation?
“… In sum, it seems that the plaintiffs’ federalism challenges to the [minimum coverage provision] should stand or fall, as a matter of constitutional adjudication, with the freedom of contract theories that animate them.”
— Bryan Leitch ’12, “Where Law Meets Politics: Freedom of Contract, Federalism, and the Fight Over Health Care