Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the Court-created distinction between encouragement and compulsion (in opposition to Medicaid expansion), and the Court-created federalism concern when Congress regulates in a way that could destroy the distinction between what is national and what is local (in opposition to universal coverage). But outside the jurisprudence, the text and history of constitutional federalism tell another story. The text and history suggest that the Constitution created a powerful federal government, of the people (not the states), and that the Constitution increasingly empowered that government, at the explicit expense of the states, over time. Thus, the text and history stand directly against the federalism challenges to the ACA. And the opponents, and apparent ACA skeptics on the Court, have therefore avoided them. This Article seeks to explore the text and history as applied to the ACA. It argues that a proper understanding of the text and history-through the text of the Constitution, the text of the Articles of Confederation, and the votes at the Constitutional Convention-show that neither Medicaid expansion nor universal coverage violate the Framers' federalism principles.
Schwinn, Steven D., "The Framers' Federalism and the Affordable Care Act" (2012). Connecticut Law Review. 151.