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    02.28.11 “Is ‘Obamacare’ Unconstitutional?”—A Debate
    Obamacare Debate

    February 9, a standing room-only crowd gathered in the student lounge for the Federalist Society event “Is ‘Obamacare’ Unconstitutional?” The debate featured Professor Nelson Tebbe, an expert in constitutional law, and Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.

    The debate centered on whether or not the “individual mandate” in the recently passed Patient Protection and Affordable Care Act (nicknamed “Obamacare”) is beyond Congress’s power under the Commerce Clause of the Constitution. Opponents of the mandate argue that Congress does not have the ability under the Constitution to force Americans into interstate economic activity.

    The conversation began on a lighthearted note before the two began to debate in earnest. Professor Tebbe joked that “it’s great to see so many people come out for a debate not only about constitutional law, which is itself kind of nerdy, but about the Commerce Clause, of all things.”

    Mr. Shapiro opened with a discussion focused on the overarching criticism of the law that extends beyond the scope of health care, specifically his concern that if the ruling goes through there would no limits on federal power. Pointing out that the federal government has never before mandated citizens to participate in economic activity, Mr. Shapiro stressed the difference between regulating the production and consumption of a product and requiring people to buy that product. He contrasted today’s situation with a case from the New Deal era, in which the Court said Congress could fine farmers who produced too much wheat.

    In response, Professor Tebbe argued that the purchase of health insurance could not be an issue of activity or inactivity. In the unique circumstances of health care, he explained, “everyone is subject to the risk of injury or illness. Everyone has a body.” A person cannot opt out of the health care market—“we either insure of self-insure.” Professor Tebbe also countered that the effects of the law on the economy would likely be minimal, since taxpayers are already absorbing the medical costs of the uninsured who receive services in hospitals. He added that obligatory purchase of health insurance actually gives consumers more choice than familiar health care programs, since consumers could choose to direct their business to private corporations as opposed to being forced to pay money to the government in the form of a Medicare tax.

    With a packed and eager audience, rebuttals were skipped in favor of an extended Q&A session for the audience. Mr. Shapiro led first by asking Professor Tebbe about the difference between enforced health insurance and, say, government regulation of the number of children per family. Professor Tebbe responded that there would be an individual rights problem with that or, he jokingly added, forcing all Americans to eat yogurt daily, but no court or lawyer has credibly suggested that the individual mandate infringes on individual rights. Audience members questioned the speakers about issues of the true nature of activity versus inactivity and whether the passage of the law will create a “slippery slope” toward unrestrained congressional power.

    Professor Tebbe spoke on the difference between infringing upon an individual’s autonomy and requiring payments for services, while Mr. Shapiro asserted that those concerns did not address the constitutional rights of Congress. Professor Tebbe agreed that these were important moral implications about whether the mandate will actually save tax payers money or improve public health, but ultimately “It doesn’t give credence to the idea that the government can overstep its constitutional bounds… These are tricky questions and I think you have to separate out the policy and the constitutional issues.”

    Listen to the full debate.