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Federalist Society’s Affordable Care Act debate addresses Act’s Constitutionality, impacts on individual liberty

March 06, 2012
By Nina Wolpow C’14
AffordableCareAct.jpgOn Feb. 22 faculty, students, and jurists gathered in Gittis Hall to hear a debate on the Affordable Care Act with Professor Richard Epstein of the University of Chicago Law School and Penn Law Professor Theodore Ruger, a Constitutional scholar and health law expert. The debate was moderated by Judge Anthony Scirica of U.S. Court of Appeals for the Third Circuit.

The most recent of the Federalist Society’s James Madison Debates, the discussion centered on the Act’s “Minimal Coverage Provision”, or mandate that requires most people to have health insurance, and the mandate’s Constitutionality.
Professors Epstein and Ruger were allotted thirteen minutes each to articulate their views on the Act and its controversial mandate, followed by seven-minute rebuttals. The two were prompted by Justice Scirica to focus both on the mandate’s viability as tax law and the question of Congressional intention in enacting a provision that either would “regulate the economic enterprise of providing healthcare” or “reach more deeply into people’s personal lives than [Congress] ever has before.”
AffordableCareAct_Epstein.jpgFirst to speak was Professor Epstein. Known widely for his libertarian views and choosing to avoid what he described as the “chameleon question” of the individual mandate’s vague classification as tax law, Epstein honed in instead on the history of the Commerce Clause and the need to find “national solutions for national problems.”
In his argument, Epstein cited three famous cases that dealt, as the Act does, with the applicability of the Commerce Clause. He began with Gibbons v. Ogden, touching on United States v. Lopez and paying particular attention to Wickard v. Filburn, a 1942 ruling that subjected the production of wheat for on-farm use to government regulation given wheat’s value as an intrastate commodity.

Epstein concluded that matter of the Act’s Constitutionality came down to the decision of whether to align the individual mandate and the health care bill that encompasses it with the agricultural bills of Wickard v. Filburn, or with the Lopez decision to restrict the power of congress in regulating the carrying of handguns.
“If you treat Wickard v. Filburn as a completely legitimate decision…it would be an extremely difficult task to win on this particular case,” said Epstein of the Act.
In closing, Epstein touched on the arduousness of eliminating established and relied-upon institutions like Medicare and Medicaid, but suggested too the dangers of considering these “sacred texts,” given the detriment they have caused to the nation.
AffordableCareAct_Ruger_2.jpgProfessor Ruger followed with a nine-point argument that he divided into atmospheric, doctrinal, and historical subsets.
To illustrate what he called the “atmospheric” conditions surrounding the Act, Ruger commented on the relative infancy of the Constitutionality dispute, citing the absence of such challenges in a debate held two years earlier at Harvard. He attributed the emergence of such challenges to the trend of “popular Constitutionalism,” he said, and moved on to argue both for the timeliness and remedial nature of the Act.

“The health system is fundamentally broken,” Ruger asserted. His “doctrinal” and “historical” arguments likewise focused on the Commerce Clause, bringing into play the 2005 case of Gonzales v. Raich on the federal regulation of homegrown marijuana.
Ruger equated the mandate, too, to the privatization of Social Security, pointing out that investment in a health care plan is not obligatory, though failure to do so could result in the calling back of tax refunds. 
In his rebuttal, Professor Epstein moved to address the Act more directly and expressed his concern about whether the Act is being discussed outside the realm of economics and inside that of Constitutionality, and thus aligns it with the tendency of Constitutional evolution to move towards expansion rather than minimization. “You have to ask yourself, ‘What’s the limiting principle?’” Epstein said.
Ruger responded to this question with what he called “the broccoli analogy,” in which the government can force individuals to buy, but not to consume broccoli. “The apt conceptual analog is a law requiring you to somehow subsidize broccoli, to purchase shares in a broccoli enterprise,” explained Ruger.”

In relation to the Act’s individual mandate, Ruger explained, “there is nothing in this individual mandate to force people to access the health care system; relatedly, there is nothing in this mandate that subverts basic state law constitutional principles or the federal principle that people have the right to refuse medical care.”

AffordableCareAct_Ruger.jpgRuger concluded with the suggestion that the mandate be seen not as an issue of physical intrusion but as a basic tax. “It imposes costs,” he said, “not physical compulsion.”
Two questions were fielded following the debate, the first concerning the burden of the mandate on the middle class and the second regarding the professors’ predictions for a U.S. Supreme Court’s decision. In response to the second, Professor Ruger predicted that the mandate would be upheld by the Supreme Court in a 6-3 vote; Epstein predicted a 5-4 vote.