What We Fret About When We Fret About Bootstrapping

Abstract

In his contribution to this symposium, Stuart Benjamin identifies, elaborates, and evaluates the intuition that there is something troubling about bootstrapping — the process by which an actor can, by doing Y, give itself the power to do Z. That intuition animates much of the opposition to the Patient Protection and Affordable Care Act (ACA). Benjamin argues convincingly that, however bootstrapping is defined, it is not the constitutional threat that some people have imagined it to be. As Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit explained in the course of rejecting a different argument against the constitutionality of the ACA, “Sometimes an intuition is just an intuition.”

In this short response, I attempt to join the projects that Benjamin has set for himself: first, identifying what people mean when they talk about bootstrapping; second, elaborating what people find troubling about that concept; and, finally, evaluating whether those concerns are justified. Although I agree with Benjamin almost completely, I try here to offer a few different points of emphasis, including more of a focus on the distinction between bootstraps and preconditions, four types of concerns regarding bootstrapping (those relating to aggrandizement, formalism, institutionalism, and transparency), and the relevance of the bootstrapper’s purpose.

Keywords: Bootstrapping, Commerce Clause, health care challenge