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ACA Threatened by Out-of-Date Constitutional Doctrine

Democrats fear that Amy Coney Barrett's appointment to the Supreme Court will endanger the Affordable Care Act (ACA). The danger, however, exists only because current constitutional law rests upon an outdated understanding of federal-state relations.

Acts of Congress have been held held unconstitutional for two reasons. Sometimes legislation has violated limits placed on the federal government by the Constitution, including the Bill of Rights. Other times courts have deemed laws to be ultra vires — "beyond the powers" granted to Congress by the Constitution.

Traditional doctrine maintains that the Constitution gives the federal government only "enumerated" powers — those specifically listed, implied by, or "necessary and proper" to carry them out.

In 2012 the Affordable Care Act nearly got struck down on grounds that the Constitution didn't authorize it.

Chief Justice John Roberts, writing for the Supreme Court's majority, pulled a rabbit out of his constitutional hat. The court held that the penalty for not purchasing the insurance mandated by the ACA was a tax. The ACA was therefore upheld as an exercise of Congress' undisputed authorization to tax.

The current challenge to the ACA arose after a Republican Congress lowered the penalty to $0. A group of Republican state attorneys general promptly sued. A federal judge in Texas ruled that the $0 penalty was no longer a tax. But the ACA had been upheld earlier only because it was an exercise of congressional taxing power. Therefore, said the judge, the ACA is now unconstitutional. All of it!

Today's outdated constitutional doctrine hobbles our country's ability to govern itself. It diverts attention from the costs and benefits of legislation.

This is the case whose appeal will soon be before the Supreme Court.

The Texas judge's reasoning would have made sense earlier in American history. But federal jurisdiction has not been limited by the need for specific constitutional authorization since Congress discovered its tremendous power of the purse.

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The government clearly has constitutional power to spend money. The income tax — authorized in 1913 by the Sixteenth Amendment— has provided it with tons of money.

Washington often transfers money to state and local governments. It also can refuse to transfer money and it can require governments wanting that money to comply with conditions laid down by Congress. The federal government can thus pursue goals which tradition says Congress cannot pursue because they weren't enumerated. This now often happens.

One major example demonstrates how this works. During the Nixon administration Arab countries created gasoline shortages by refusing to sell us oil. Cars get better mileage at low speeds, so Nixon wanted a lower national speed limit.

But traditional federalism doctrine considered highways to be a state responsibility, and state governments weren't inclined to enact lower speed limits. Since it couldn't enact a national speed limit, Congress enacted legislation withholding National Highway Trust Fund money from states that didn't lower the limit. The states folded.

Congress can use its power of the purse without worrying about whether its goals are authorized by the Constitution. Except for a conceptually incoherent decision in the Medicaid expansion case, the Supreme Court has upheld this strategy.

It makes no sense to continue limiting federal power to enact laws when it can achieve the allegedly unconstitutional results anyway by employing its power of the purse.

Today's outdated constitutional doctrine hobbles our country's ability to govern itself. It diverts attention from the costs and benefits of legislation. It allows interests which have lost legislative battles to tie legislation up in the courts with claims that Congress lacked authority to enact it.

It invites judges to make policy decisions that should be made by elected legislators. That is why supporters of the ACA fear the addition of ACA critic Amy Coney Barrett to the Supreme Court.


It is time for our law to abandon the enumerated powers doctrine and uphold federal laws unless they violate constitutional prohibitions. The Constitution's enumerated powers should henceforth be considered examples, not an exhaustive list.

Paul F. deLespinasse

Reposted with the author's permission from NewsMax.