The “Bait and Switch” on the Affordable Care Act’s “Findings”
In California v. Texas, the so-called “findings” have played an important role in the severability debates. I discuss the history of these findings in my 2013 book, Unprecedented: The Constitutional Challenge to Obamacare. Here is an excerpt (pp. 49-51):
Before the Senate bill emerged from committee, the Democrats were so confident of the law’s constitutionality that they made few efforts to prove it. No hearings were held about the law’s constitutional implications until after it was enacted. However, a number of progressives were already wary of the Supreme Court. In the fall of 2009, Michael Myers, staff director and chief counsel to the Senate Health Committee, contacted Caroline Fredrickson, the executive director of the American Constitution Society. ACS, created as a liberal counterweight to the Federalist Society, promotes the values of “individual rights and liberties, genuine equality, access to justice, democracy and the rule of law.” Myers asked Fredrickson to put together a series of “constitutional findings” to insert into the bill to explain why the ACA was constitutional. This could prove vital, as in recent years the Supreme Court had struck down laws as unconstitutional due to inadequate Congressional findings.
Fredrickson quickly contacted several leading scholars and policy experts, including Simon Lazarus of the National Senior Citizens Law Center (now at the Constitutional Accountability Center), David Lyle, who at the time was the deputy director of the ACS (and now works at Media Matters), and others. Over the course of two frenzied days, declarations to fend off charges of unconstitutionality were compiled. The Senate incorporated the ACS’s points, as well as reports from Professor Mark Hall, into the law.
Ultimately, the 2,700-page Affordable Care Act contained three pages of constitutional findings to show that the “requirement to maintain minimum essential coverage” was constitutional. Firs
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