Title: The ACA and the Tenth Amendment - SCOTUSblog
Headings: The ACA and the Tenth Amendment
The ACA and the Tenth Amendment
The Text, history, and jurisprudence
The Tenth Amendment arguments against the ACA

Content: The ACA and the Tenth Amendment - SCOTUSblog
The ACA and the Tenth Amendment
By Steven Schwinn
on Aug 5, 2011 at 1:38 pm
This essay for our symposium is by Steven D. Schwinn, an associate professor of law at the John Marshall Law School in Chicago and co-editor of the Constitutional Law Prof Blog. Â He teaches, writes, and practices in the areas of U.S. constitutional law, comparative constitutional law, and human rights. Constitutional arguments against the Affordable Care Act (ACA) have centered principally around congressional authority under the Commerce Clause. Â Thus opponents of the ACA, both in litigation and in the public sphere, have argued that the individual health insurance mandate exceeds congressional authority under the Commerce Clause, because the mandate is not a regulation (it is a requirement) and because those regulated are not engaged in commerce (they are inert).Â These arguments are novel and ahistorical, representing nothing less than a bald-faced attempt to rewrite the Constitution in a libertarian image. But there is another argument, similarly novel and ahistorical, that has gone relatively unnoticed â€“ that the ACA violates the Tenth Amendment and related federalism principles. Â The argument is that the Tenth Amendment is a bulwark against federal overreaching in the ACA: the Tenth Amendment cabins federal power, protects state citizens, and protects statesâ€™ rights. Â This Tenth Amendment argument, like its Commerce Clause companion, lacks support in the text, history, and Supreme Court jurisprudence of the Constitution. Â Like so much of what we hear in constitutional debates today, it is an insidious attempt to shift the frames of constitutional debate and, at the end of the day, reshape the very contours of the Constitution. No amount of repetition and volume in these arguments can change the text, history, and jurisprudence of the Tenth Amendment.