Political Ideology and Constitutional Decision-Making: The Coming Example of the Affordable Care Act

Erwin Chemerinsky, UC Irvine School of Law


Under current constitutional doctrines, the constitutionality of the individual mandate in the Affordable Care Act is an easy question; it is clearly constitutional. Congress has the authority to adopt this under its commerce power, its spending power, or under the necessary and proper clause. It is its role in the political debate which makes it difficult and which likely will make it a close question before the Supreme Court. At any point in time, there are issues that are used to define people politically and that people use to define themselves ideologically. The Second Amendment and abortion have been examples of this in recent years.

Focusing on these issues solely in terms of constitutional argument and constitutional doctrine loses sight of the role of such issues as people – including justices – define themselves, and others, politically and ideologically. A person who sees himself or herself as politically liberal or conservative will want to take positions similar to others with that orientation and have his or her views defined, in large part, by the dominant view of that political orientation. It is no less so for justices than others. Justices, to be sure, at times deviate from this, as do other in society. But it is a mistake to look at the constitutionality of the Affordable Care Act apart from this reality or to see constitutional doctrine apart from the political climate which influences the views that people hold.

Sometimes decisions on such issues have little effect on overall constitutional law. Bush v. Gore, for example, had no apparent effect on constitutional doctrines; no Supreme Court cases have cited it and rarely has it been relied on by lower courts. The Second Amendment decisions in District of Columbia v. Heller and McDonald v. City of Chicago, so far have had little effect outside of the gun control area. But the ideological orientation as to abortion rights has had a profound effect on views on other constitutional issues. I suggest that if the Court invalidates the individual mandate, the long-term implications will be significant.