Obamacare and Federalism's Tug of War Within

Abstract

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the 'Obamacare' cases, the Court considers whether the Affordable Care Act ('ACA') exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.This very short essay explains the battle over Obamacare in terms of the classic American federalism debates, and proposes a better way of analyzing this and all federalism issues, drawing from a new book. (Different versions of this essay were cross-posted to RegBlog, the American Constitution Society Blog, and the Environmental Law Profs Blog on June 21, 2012.)