Foreword, the Constitutionality of the Affordable Care Act: Ideas from the Academy

Abstract

The articles published in this volume of Law and Contemporary Problems address the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA), either directly or indirectly. They were originally presented at a conference at Duke Law School on September 16, 2011. Entitled “The Constitutionality of the Affordable Care Act: Ideas from the Academy,” 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 contributions to the national debate over the constitutionality of the ACA. These legal academics are less constrained by their clients or their offices than are other legal actors, they are blessed with the time to study constitutional doctrine or health law for a living, and they often possess interdisciplinary expertise that is pertinent to the proper resolution of legal problems. To be sure, these characteristics can be vices when exhibited in the practice of constitutional adjudication — particularly if creative impulses and theoretical ambitions are undisciplined by the necessity of deciding particular cases soundly. But these attributes can be virtues as well. Among many other activities, legal academics conduct original historical research, perceive connections among constitutional doctrines or provisions that have previously gone unnoticed, use relevant methods or insights of other disciplines to shed light on legal problems, and bring to bear their specialized legal knowledge to help courts of general jurisdiction decide between the clientcentered arguments of generalist appellate lawyers. These contributions can be relevant to the outcome of constitutional and statutory cases. This may help to explain why the Justices routinely cite the work of legal academics. Both the data and casual empiricism attest to the real-world relevance of much legal academic writing.

Keywords: Patient Protection and Affordable Care Act, ACA, health care, individual mandate, Commerce Clause, tax power, Necessary and Proper clause