Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act

Neal Devins*

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Introduction

Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA)[1] than Congress did when enacting the ACA.  Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding.  Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions ("Party Polarization"),[2] lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress.

In this Essay, I will provide a descriptive account of Congress's general disinterest in the Constitution when enacting the ACA.  In so doing, this Essay will serve as a case study that bolsters the claims and evidence in my Party Polarization article.  This Essay is but one in a series on party polarization and committee behavior regarding the Constitution.  In a forthcoming essay that will appear in the print pages of the Northwestern University Law Review, I will extend this Essay's case study to make broader claims about the impact of party polarization on Congress's interest in federalism, including congressional fact-finding on bills which implicate constitutional federalism.

Do the Right Thing: Understanding the Interest-Convergence Thesis

Stephen M. Feldman*

Editor's Note: This Essay is a response to Justin Driver, Rethinking the Interest-Convergence Thesis , 105 NW. U. L. Rev. 149 (2011).

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Introduction

Professor Derrick Bell was one of the most influential constitutional scholars of the last fifty years. He helped create a genre of legal scholarship—critical race theory—and pioneered storytelling as a scholarly method. His insights spurred civil rights scholars as well as thinkers in other fields. One of his most important legacies—he died on October 5, 2011—is the interest-convergence thesis, which asserts that, historically, African Americans gained social justice primarily when their interests converged with the interests of the white majority.[1] Many scholars not only accept the validity of Bell's thesis but also extend its application to other contexts.[2]

In a recently published article, Rethinking the Interest-Convergence Thesis, Professor Justin Driver calls this legacy into question.[3] After acknowledging the prominence of Bell's scholarship in general, and the significance of the interest-convergence thesis in particular, Driver vigorously criticizes the thesis. He argues that it suffers from "four analytical flaws":[4]