Popular Constitutionalism and the Affordable Care Act

Abstract

The challenge to the Affordable Care Act was waged on two fronts. The first front was the constitutionalist front. Challengers claimed that it was unprecedented for Congress to compel people to engage in commerce, and purchase health insurance. However, the second front in this battle is much less appreciated. Underneath these constitutionalist positions were popular constitutionalist social movements.

This essay, part of a symposium issue of Public Affairs Quarterly, analyzes the movement through the lens of popular constitutionalism, from its conception, to its growth, to its strengthening counter-movement, and finally to its inevitable conclusion at the Supreme Court of the United States.

First, I explore notions of popular constitutionalism, and how the will of the people impacts how the courts construe our most fundamental laws. Second, I trace how the argument against the Affordable Care Act evolved from a simple idea to a popular constitutionalist movement, brewed by groups such as the Tea Party. Third, I discuss how a progressive countermovement formed to combat the challengers, and aimed to maintain the status quo of constitutional law. I conclude by considering how the courts received these competing social movements.

The dynamics of popular constitutionalism were fully unleashed in NIFB v. Sebelius. Not only was this case unprecedented, but the challenge to it was also unprecedented.