BY JOEY SEILER
Dean Martha Minow welcomed a packed Ames Courtroom on Thursday, March 24, to a debate on what she called “one of the most important” policy and constitutional questions of our time: whether the individual mandate of President Obama’s healthcare legislation was constitutional. Profs. Charles Fried and Laurence Tribe ’66 argued that the mandate was constitutional and would eventually be found so by the Supreme Court. Prof. Randy Barnett ’77 of the Georgetown University Law Center argued the law requiring citizens to purchase insurance was unconstitutional.
Barnett opened with a thought experiment, asking the audience to imagine a tomorrow filled with 100 new prohibitions. They each restrict your liberty, he said, but leave you free to pursue other options. Mandates, however, require you to forego other freedoms to meet their obligations.
“This has never happened before,” said Barnett of economic mandates. Its restriction on liberty and unprecedented nature of the mandate took the focus for Barnett’s criticism, which has been influential in Republicans’ mission to defang or outright remove the healthcare legislation.
The government only rarely issued mandates to citizens, said Barnett, pointing to examples like jury duty or the draft. Those, he said, are considered an inherent part of citizenship, unlike the choice to opt in to healthcare. The financial aspect, he said, was part of and had been examined not as a tax, but as an extension of Congress’ power to regulate interstate commerce.
Even that, though, has been limited to regulating activity, said Barnett. The current healthcare mandate, he argued, was unlike previous extensions of the Commerce Clause, like that upheld in Gonzales v. Raich, which allowed Congress to criminalize marijuana even while states legalized it for medicinal use. The current law, said Barnett, does not regulate an existing activity, but, rather, would tell Raich he “must grow marijuana.”
If Congress is given the power to conscript citizens to its whims limited only by the constitutional principle of liberty, said Barnett, the Constitution’s Enumerated Powers mean nothing. Congress would be given the same power and limits as the states’ plenary police powers. However, because the healthcare law is unprecedented, Barnett believes the Supreme Court can and will invalidate the law without affecting others if it remains unpopular.
Prof. Fried, who taught tort law to Barnett, responded to Barnett’s federalist attack, leaving the question of liberty to Prof. Tribe. Only two cases, he said, have rejected Congress’ extension of its commerce power since the 1930s. Those, which tied gender hate crimes to efficiency of labor and interstate investment to carrying guns near schools, were motivated by goals only “remotely connected” to their effects. Congress’ goal of providing healthcare, though, requires the individual mandate.
Fried pointed out that Judge Roger Vinson of the Second Circuit observed as much when he invalidated the entire healthcare law because he found it inextricably entwined with the individual mandate. In this case, Fried found Barnett’s distinction between regulating activity and inactivity irrelevant. Congress, said Fried, was given the power to regulate and prescribe rules governing conduct without limits other than the constitution.
Regardless, said Fried, a base to oppose the healthcare law must be found elsewhere than in “imagined limits on commerce power.” That, said Fried, is more of a skyhook than an anchor.
Prof. Tribe opened jokingly, observing that he “purported to teach [Randy] constitutional law. Apparently something went wrong.” He grew more serious, though, in his rebuttal.
First, Tribe attacked the idea that the mandate penalized inaction. Rather, it addressed a decision to remain uninsured and waiting until healthcare became necessary — and potentially more expensive to other taxpayers to provide. Congress was not regulating inaction, but individual conduct that shifts costs to others, which in turn decreases the possibility of equal availability to insurance. These costs are no small matter: Tribe argued the law addresses a $43 billion sinkhole that represents costs to provide medical care to the uninsured. The decision to gamble on obtaining insurance, he said, is active conduct which the government can regulate.
Tribe then moved on to correct Barnett’s reading of history. The current law, he said, is not unprecedented. Beginning in 1790 with a law requiring ship owners to stock provisions, he said, the government has issued economic mandates. In 1792 ablebodied men were required to supply themselves with arms and gear for militia service. In 1890, antitrust law began requiring certain purchases. Perhaps most importantly, the sea change of civil rights law was based on the ability of the government to force restaurateurs and hoteliers to serve classes of people they would rather not.
The point, said Tribe, is not whether a law falls in the mandate or prohibition column or how large a list they make up, but how sweeping the restrictions on liberty become. The argument that the mandate is beyond the pale, said Tribe, “wouldn’t have flown even in the Lochner era,” which still upheld mandates to require individuals to work on community roads or receive compulsory vaccinations.
“There may be a right in the unenumerated penumbras of the Bill of Rights or the Liberty Clause, a right not to be forced to accept medical care you don’t want, but there’s no right to force the society to pay for your medical care by taking a free ride on the system” that is a multi-billion-dollar industry, said Tribe. “I’m reasonably confident that the Court will see it that way.”
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