The Affordable Care Act, the constitutional meaning of statutes, and the emerging doctrine of positive constitutional rights.

Author:Rubin, Edward

TABLE OF CONTENTS INTRODUCTION I. HOW STATUTES INTERPRET THE CONSTITUTION A. The Idea of a Constitution B. The Purposes of a Constitution C. The Purposes of the U.S. Constitution 1. Strong National Government 2. Liberty 3. Equality II. POSITIVE RIGHTS AND THE U.S. CONSTITUTION A. The Idea of Positive Rights B. Statutes as Declarations of Positive Rights III. THE PPACA AND POSITIVE RIGHTS A. The PPACA as a Declaration of Positive Rights B. Statutory Interpretations as a Response to Criticisms of Positive Rights CONCLUSION INTRODUCTION

Why are so many people unwilling to accept the 2010 enactment of the Patient Protection and Affordable Care Act (PPACA or the Act)? (1) The obvious fact that many people do not like the law is not, by itself, an adequate explanation. (2) Most proposed laws have opponents, often determined and vociferous ones. Once the law is passed, however, its opponents tend to shift from general opposition to more particularized efforts to live with the law, minimize its impact, or undermine its effectiveness. Continued opposition to the law itself is a much rarer phenomenon.

Compare the response to the PPACA with the response to the other one-thousand page statutory behemoth that the Obama administration enacted in its first two years, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). (3) Dodd-Frank was hardly an uncontroversial piece of legislation; indeed, it gored the ox of one of the most powerful interest groups in the United States. (4) Yet it vanished from the public agenda as soon as it was enacted. (5) One can be quite certain that there are literally thousands of lawyers working assiduously on ways to preserve the practices that the Dodd-Frank Act attempted to terminate or alter, and that there are thousands of other business, law, and public relations executives lobbying the regulatory agencies for favorable treatment under the new law. But the financial services industry seems content to rely on these typical responses rather than expend its literal and figurative capital on an effort to repeal Dodd-Frank.

In contrast, the political opposition to the PPACA has been intense, not only when it was being debated, (6) but also after it was enacted into law. (7) At least twenty-six states have filed lawsuits to overturn portions of the Act, (8) and legislators in a similar number of states have proposed or incorporated amendments to their state codes that would preclude its operation. (9) Many Republican politicians made their opposition to the Act the primary focus of their campaigns in the 2010 elections, (10) and once elected, used their majority in the House of Representatives to pass an admittedly symbolic repeal bill. (11) Not content with this gesture, they have continued their animadversion against the Act, declaring that this opposition will be the focus of their 2012 campaigns as well. (12) Potential Republican nominees for President are attempting to outdo each other in their hostility to the PPACA, (13) and a major disadvantage afflicting Mitt Romney, who might otherwise be the clear front-runner, is that he is poorly positioned to oppose the PPACA because he spearheaded similar legislation as Governor of Massachusetts. (14) Perhaps most significantly, the PPACA seems to have been one of two factors that have led to the remarkably rapid development of a genuine social movement: (15) the now-notorious Tea Party. (16) The Tea Party's success, in turn, has fueled opposition to the Act. (17) Some of the Republicans who oppose the Act are undoubtedly sincere in their personal distaste for it and would oppose it in any case. But legislators who are insincere provide even more impressive evidence of the Act's unpopularity, because they are, in that case, appealing to an accurately perceived revulsion toward the Act among their constituents.

This Article argues that the intense opposition to the PPACA arises from the realization that the Act represents a genuine revolution in the way we think about American citizenship and the nature of our political community. (18) In fact, it is a constitutional revolution, not only in the general sense that it changes the basic moral structure of our government, but in the specific sense that it redefines constitutional doctrine, creating new rights that the Supreme Court will ultimately be called on to enforce. The opposition to the PPACA is intensified by the further recognition that the statute's continued existence is constitutionally relevant. More specifically, people understand, at some politically visceral level, a feature of constitutional law that has been underemphasized in the scholarly literature; namely, that statutes as well as judicial decisions interpret the Constitution. (19) Not every statute is relevant to our understanding of the Constitution, of course, but many significant ones are and the PPACA is a prime example. The Act's passage suggests that the U.S. Constitution guarantees so-called positive rights, such as rights to sustenance, decent housing, an adequate education, and, of course, basic health care. (20) The mere fact of its enactment secures the place of these rights on our political agenda and encourages the Supreme Court to declare them part of the Constitution. The Act's continued existence will intensify these tendencies.

This Article begins by explaining how statutes can be regarded as interpretations of the Constitution. (21) It proceeds to discuss the concept of positive rights, and the way that constitutional interpretation by statute contributes to the recognition of these rights. (22) It then argues that the PPACA is a statute of this sort and that this is at least part of the reason why it has aroused such fervent opposition. (23)


    1. The Idea of a Constitution

      The standard way of thinking about the relationship between statutes and the Constitution is that the Constitution establishes a general framework for permissible governmental action and the elected government acts within that framework. (24) The government must respect those boundaries or risk having its actions struck down by a court when it exceeds them. To allow quotidian governmental action to affect the framework itself, it is thought, would vitiate the entire purpose of having a written constitution. (25) This notion is derived from the contract theory of government, which emerged during the seventeenth century, finding its most incisive and memorable advocates in Hobbes and Locke. (26) Their view, and what decisively distinguished their theory from the contractual theories of government that prevailed during the Middle Ages, (27) was that people in a state of nature exchanged a natural but unsatisfactory freedom for the advantages of civil order, specifically safety and prosperity. (28) It follows from this mode of thought that the Constitution was conceived as embodying or codifying such a social contract. (29) To allow governmental action to affect the social contract, according to this view, would be to violate the contract's original terms and destroy its ongoing effect. The people would have sacrificed their natural freedom for an illusory promise and would thus be victims of a sort of high-level bait-and-switch scam.

      To see why this account of the U.S. Constitution, conventional though it may be, does not adequately capture the Constitution's meaning, it is necessary to consider a constitution in greater detail. According to the premodern view, and to premodern contractarian thought, the state was regarded as an autonomous entity. (30) It was supposed to govern in the interests of the populace, but it was generally regarded as having a divine origin and exercising God-given authority. (31) The analogy, which was entirely explicit at the time, was between the state and the family; the king, like the father, ruled in accordance with a divinely established order. (32) This did not mean that the king himself was chosen by God. Rather, the prevailing view was that he ruled by consent of the people or, more specifically, by consent of the nobility or warrior elite. (33) Nor did it mean that the king could do no wrong; like the father, he was supposed to act in accordance with natural law, that is, the law established by God and promulgated through human reason. (34) Rather, the divine origin of kingship meant that God established the office itself and the authority that the office possessed. Although the king might have obtained his position by popular consent or historical circumstance, the legitimacy of that position derived from God's design. (35) Thus the king's regime--the government--had an autonomous basis; it was not a human mechanism or device. (36)

      Pragmatic developments and theoretical considerations supported the idea that government is an autonomous entity. By the end of the Early Middle Ages, kings were functioning as private persons whose position resulted from their location at the top of the feudal hierarchy. (37) Accordingly, members of the high nobility were vassals of the king, bound to him by a personal pledge of loyalty, just as these nobles themselves had vassals bound to them by the same means. (38) Even Charlemagne, although he attempted to recapture the Roman imperium, demanded that all the nobles of his extensive realm take an oath of loyalty to him as their feudal lord. (39) The essence of a feudal lord's status was autonomy, which distinguished him from the great mass of unfree serfs; his constraints were his obligations to his overlord. (40) The king, who had no overlord, was thus entirely autonomous.

      The nation-state developed from the feudal monarchy. (41) As it did, it assumed features that were increasingly related to its public functions. The king's household was gradually transformed into the machinery of governance. (42) His secretary, who was responsible for the signet ring--by which he signed or authenticated...

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