Popular Constitutionalism and the Affordable Care Act
by Josh Blackman
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. They asserted that Congress lacked such authority under both the
Commerce Clause and Taxing Power. However, the second front in this battle is
much less appreciated. Underneath these constitutionalist positions were popular
constitutionalist social movements.
This essay analyzes the challenge to the Affordable Care Act (ACA) through
the lens of popular constitutionalism, from its conception, to its growth, to its
strengthening countermovement, and finally to its inevitable conclusion in the
Supreme Court of the United States. Specifically, this essay does not focus on
the Courtís ultimate decision, but rather considers the paths of the competing
movements that advanced this challenge over the two-year battle in the courts.