an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Affordable Care Act and the Fundamental Right to Health Care
Rebecca E. Zietlow
In a couple of weeks, the United States Supreme Court will hear oral arguments about the constitutionality of the 2010 Patient Protection and Affordable Care Act (“ACA”). What is at stake in that case? According to opponents of the Act, what is at stake is the liberty of individuals who, absent Court intervention, will be forced to comply with the tyrannical individual mandate. However, liberty is not the only, nor the most important, individual right at stake in this controversy. What is at stake in the ACA litigation is Congress’ authority to establish and protect our fundamental right to health care.
The right to health care has been curiously absent from the dialogue over the constitutionality of the ACA. Instead, supporters of the ACA have confined themselves primarily to dry economic arguments. The ACA was indeed an attempt by Congress to address a national economic problem, the high cost and lack of accessibility of health care in our country. However, the ACA is not merely economic legislation. Members of Congress who enacted the ACA also saw themselves as protecting a fundamental human right - the right to health care. Throughout the twentieth century, advocates for expanding access to health care argued that health care was a fundamental human right. When enacting the ACA, congressional supporters of the Act agreed and established a federal commitment to maintain that right. The ACA not only expands access to health care, more importantly, it establishes a presumption in favor of affordable and accessible health care for all Americans.
Tea Party activists claim that the ACA unduly expands federal power at the expense of states’ rights and individual liberty. The Tea Party’s well-publicized engagement in popular constitutionalism - constitutional interpretation outside of the courts - has been celebrated by conservative politicians and constitutional law scholars and has caused less conservative constitutional scholars to think twice about their own interest in popular constitutionalism. Often lost in this story is the fact that the ACA itself was the product of popular constitutionalism, a victory for political advocates who argued that the right to health care was a fundamental human right that warranted protection by the federal government. During congressional debates over the ACA, members of Congress expressed both sides of the constitutional debate, and the progressive vision prevailed.
The ACA is thus a reminder that progressives need not fear popular constitutionalism. Popular constitutionalism is healthy for civic society because it involves a public dialogue about our fundamental values and how they fit into our constitutional scheme. Indeed, progressive constitutional change rarely if ever occurs without political activism. This is particularly true with regard to the expansion of rights of belonging, those rights that promote an inclusive vision of who belongs to our national community and enforce that vision. Finally, and perhaps most importantly, rights are most robust and lasting when they are adopted through the process of democratic constitutionalism. The Court has always ceded authority to Congress to define economic rights. It should continue to do so, because they are an essential form of rights of belonging.
Of course, there are flaws in the claim that the ACA protects a fundamental right. The ACA does not guarantee universal access to health care, and its coverage excludes a significant number of vulnerable persons - most notably, undocumented immigrants. Nonetheless, it is important to remember that the ACA is a rights-protecting measure. This insight bolsters the argument that the ACA falls within congressional power to act. Congress had a rational basis for using its economic powers to establish and protect what it has identified as a fundamental economic right. Most importantly, if progressive constitutionalists cede the rhetoric of rights to the conservative opponents of the ACA, this could endanger the right to health care protected by that Act. Reviving the vision of fundamental rights, the vision behind the ACA, is vital to prevent the Court from disempowering Congress from protecting those rights.
For a more in-depth exploration of these issues, see my recent article, Democratic Constitutionalism and the Affordable Care Act, available here.
Rebecca E. Zietlow is Charles W. Fornoff Professor of Law and Values at the University of Toledo School of Law. You can reach her by e-mail at Rebecca Zietlow at utoledo.edu Posted
by Guest Blogger [link]