State Waivers Provide Yet Another Reason Why The Affordable Care Act is Constitutional


Following up on Igor Volsky’s post about the Affordable Care Act’s provision enabling states to opt out of certain parts of the law beginning in 2017, it’s worth noting that these waivers provide yet another reason why the ACA easily survives constitutional scrutiny.

In a case called United States v. Comstock, the Supreme Court considered an Act of Congress that had a much more dubious claim to constitutionality than the ACA — a law permitting federal officials to detain “sexually dangerous” inmates long after they had completed their original sentences. Significantly, this law was supported by none of the powerful constitutional arguments that support the ACA. The law does not regulate the national economy, and thus could not fit within Congress’ robust power to regulate the national economy. The law does not raise revenues, and thus does not fit within Congress’ taxing power.  And — unlike the ACA — the law in Comstock was in no way necessary to ensure that another federal law functioned properly, and thus was more difficult to fit within Congress’ “necessary and proper” power.

Nevertheless, the Court upheld the law. In doing so, the justices explained that, in marginal cases, a law stands on stronger constitutional footing when it includes a provision that “properly accounts for state interests“:

Nor does this statute invade state sovereignty or otherwise improperly limit the scope of “powers that remain with the States.” To the contrary, it requires accommodation of state interests: The Attorney General must inform the State in which the federal prisoner “is domiciled or was tried” that he is detaining someone with respect to whom those States may wish to assert their authority, and he must encourage those States to assume custody of the individual. He must also immediately “release” that person “to the appropriate official of” either State “if such State will assume [such] responsibility.”  And either State has the right, at any time, to assert its authority over the individual, which will prompt the individual’s immediate transfer to State custody. Respondents contend that the States are nonetheless “powerless to prevent the detention of their citizens under §4248, even if detention is contrary to the States’ policy choices.” But that is not the most natural reading of the statute, and the Solicitor General acknowledges that “the Federal Government would have no appropriate role” with respect to an individual covered by the statute once “the transfer to State responsibility and State control has occurred.”

Of course, the lawsuits against the Affordable Care Act are not marginal cases — the ACA is unquestionably constitutional, and would be so even if it contained no provisions allowing state waivers at all. Nevertheless, Congress’ decision to allow such waivers provides yet another thumb on the scale in favor of the ACA’s constitutionality. Like the law in Comstock, the ACA goes out of its way to accommodate state interests.