Party Polarization and Judicial Review: Lessons from the Affordable Care Act (original) (raw)
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Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act
2012
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) 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”), 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 th...
Measuring Party Polarization in Congress: Lessons from Congressional Participation as Amicus Curiae
2015
Goodrich Professor of Law and Professor of Government, College of William and Mary. Thanks to Jonathan Entin, Kirk Shaw, and the Case Western Reserve Law Review for inviting me to participate in the Executive Discretion and the Administrative State Symposium. Thanks to my research assistants Brian Gividen, Brian Kelley, and especially Phil Giammona. Thanks finally to Tara Grove for collaborating with me on a joint paper on Congress's power to represent itself in court. Some of the research and a fair bit of the thinking for this Article is drawn from research undertaken for (but not published in) that joint paper.
The Affordable Care Act and Polarization in the United States
RSF: The Russell Sage Foundation Journal of the Social Sciences, 2020
choices is elite partisanship. Republican-led, conservative states have tended to delay decisions, default to a federal marketplace, and opt out of Medicaid expansion. In contrast, more liberal Democrat-led states have been more likely to establish their own insurance marketplace and expand Medicaid (Barrilleaux and Rainey 2014; Callaghan and Jacobs 2014; Lanford and Quadagno 2016; Rigby and Haselswerdt 2013; Jones, Singer, and Ayanian 2014). States continue to experiment with ACA policy designs. At the time of this writing, eighteen states-the majority being conservative-have The Affordable Care Act and Polarization in the United States julI A n nA pAcheco , jA K e h Aselsw er d t , A nd jA mIl A mIchener We argue that partisan polarization in public support of the Affordable Care Act (ACA) is affected not only by policy design but also by which party makes those decisions. Using an innovative dataset that measures state-level quarterly ACA support from 2009 through the start of the 2016 presidential election, we find that opinions toward the ACA are less polarized in states with misaligned partisan environments where Republican governors support Medicaid expansion. We also find evidence that Republican opposition intensifies when a Democratic governor supports expansion. We do not find consistent evidence of such patterns for governors' positions on state health insurance exchanges. Our research sheds light on a key aspect of how health policy preferences respond to shifting political contexts in a polarized, federated polity.
Policy Threat, Partisanship, and the Case of the Affordable Care Act
American Political Science Review
How do political conditions influence whether public support develops for a new policy? Specifically, does the presence of partisan polarization and a viable threat to a policy’s continuation prevent the emergence of such support? We propose a theoretical framework that considers how policy feedback may be affected by the presence or absence of both policy threat and polarization. We argue that a threat is likely to increase policy salience and trigger loss aversion, expanding policy feedback even amid strong partisanship. We examine the threat to the Affordable Care Act after Republicans won control of Congress and the White House and stood poised to act on their long promise to repeal the law. Five waves of panel data permit analysis of how individuals’ responses to the law changed over time, affecting their support for it as well as their voting calculations. The results suggest that policy threat heightens the effect of policy feedback for some populations while depressing it fo...
Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?
T his paper explores three competing accounts of judicial review by comparing the enacting and invalidating coalitions for each of the fifty-three federal statutes struck down by the Supreme Court during its 1981 through 2005 terms. When a Republican judicial coalition invalidates a Democratic statute, the Court's decision is consistent with a partisan account, and when a conservative judicial coalition invalidates a liberal statute, the decision is explicable on policy grounds. But when an ideologically mixed coalition invalidates a bipartisan statute, the decision may have reflected an institutional divide between judges and legislators rather than a partisan or policy conflict. Finding more cases consistent with this last explanation than either of the others, I suggest that the existing literature has paid insufficient attention to the possibility of institutionally motivated judicial behavior, and more importantly, that any comprehensive account of the Court's decisions will have to attend to the interaction of multiple competing influences on the justices.
2015
Recent years have seen concerns about political polarization in America come to the fore – one only has to look at the recent fight between Congressional Republicans over the next Speaker of the House or Representatives to witness its effects. But what of judicial polarization? In new research which examines polarization in the US Supreme Court since 1938, Donald Gooch finds that this polarization has also increased, and correlates with congressional and presidential polarization. He argues that this trend is fed by shifts in ideological polarization in the Senate, and in public opinion. If it continues, he writes, polarization may lead to more frequent and powerful attacks on the Supreme Court’s authority and supremacy.
The Onward March of (Asymmetric) Partisan Polarisation in the Contemporary Congress
Issues in American Politics edited by John W. Dumbrell. New York and London: Routledge, 2013
For decades now, congressional parties have been the most significant political organisations on Capitol Hill as class and cultural issues have produced increasingly sharp ideological divisions between Democrats and Republicans engendering congressional parties that are cohesive and ideologically polarised parties to an extent that would have been unknown to members of the Congress in the mid-twentieth century and to the framers of the US Constitution in the late eighteenth century. As we have moved into the second decade of the twenty-first century, both partisanship and partisan polarisation in the Congress have strengthened even further from 10 or 20 years ago, at the same time that American voters care neither for the Congress as an institution nor its parties. Polarisation, however, has not been symmetric: For, typically ignored in many journalistic accounts, congressional Republicans have moved much more sharply to the right than have congressional Democrats to the left, never more so than since the inauguration of President Obama in 2009. There is no shortage of examples of the effects of asymmetric partisan polarisation on contemporary policymaking in Washington, most notably, over the debt increase in late 2011. This episode also demonstrates the level of political uncertainty that polarisation engenders: policy outcomes in each chamber have necessarily become much more volatile while the probability of congressional-presidential agreement in writing major legislation decreases under conditions of split-party government, whereas it increases significantly. This pattern of policymaking is a far cry from the naïve anti-party expectations of the US Constitution’s framers; and, apparently, not what most Americans want.