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Panelists, Constitution Day 2012 

SCOTUS Affordable Care Act ruling topic for Constitution Day

By Clarissa Sansone
Oct. 4, 2012

The Supreme Court's ruling on the Affordable Care Act—which upheld the individual mandate as an exercise of Congress's taxing power (but not as an exercise of the commerce clause) and restricted the expansion of Medicaid—was the obvious choice as a topic for this year's Constitution Day discussion.

Students, faculty, and members of the public gathered in a Hutchins Hall classroom Sept. 27 for the presentation "The Health Care Decision: Was It Right? What Does It Mean?"

"This was an extraordinary case in every way," said Prof. Richard Friedman of the ACA deliberations, noting the five-and-a-half hours' worth of arguments presented by each side, compared to the half-hour-per-side normally allotted by the Supreme Court.

Prof. Friedman moderated a panel comprising Profs. Richard Primus and Samuel Bagenstos, constitutional law experts, and Prof. Nicholas Bagley, an expert in administrative and health law. The panelists addressed the commerce clause, the taxing clause, and Medicaid expansion, respectively.

Watch a video of the panel discussion.

Prof. Primus assessed what the Court's opinion on the commerce clause demonstrated about constitutional change.

"It's pretty broad," Prof. Primus said of the clause, adding that Congress can regulate "really just about anything." Within the last two decades, however, the law has found "little tiny corners where commerce cannot go," he said.

The Court's opinion on the commerce clause was that Congress can regulate actions, but not inactions. "It is brilliant, and it is hokum," Prof. Primus said of the opinion. Brilliant, because the distinction between activity and inactivity seems easily graspable, and it seems to fulfill the requirement that Congress’s enumerated powers be limited. Hokum, because the distinction was largely manufactured for this case, rather than being rooted in prior constitutional authority, and because it cannot really deliver the limitation on governmental power that it seems to promise, said Prof. Primus.

Primus said the legal distinction of activity/inactivity was "off the wall" a few years ago, but that many people became persuaded, in a short amount of time, that it was valid. Compared to the usual glacial pace of constitutional change, this was unusual, "like many icebergs falling off a glacier all at once," said Prof. Primus.

Prof. Bagenstos addressed the taxing clause integral to the Court's opinion. Chief Justice Roberts "pulled a rabbit out of a hat" when he constructed the argument that the individual mandate was an exercise of Congress's taxing power, and not its commerce power, Prof. Bagenstos said.

Prof. Bagenstos agreed that taxing power was the strongest argument for the individual mandate. "It's just like any other tax," he said. "Lots of taxes regulate activities."

Prof. Bagley, in his discussion of Medicaid expansion, noted that before the ACA ruling, the Court never had to consider federal funding as coercive, but this is how the Court ruled concerning Medicaid expansion. Chief Justice Robert's "key move," said Prof. Bagley, was to view the expansion as a new federal program "layered" over an old one (Medicaid). Therefore Congress could not condition receipt of federal funds for Medicaid based on a state's acceptance of the expansion, because that would be a "gun to the head," said Prof. Bagley.

The threat of losing existing federal Medicaid funds, then, was a form of coercion to accept the expansion.

"The decision's most lasting significance," said Prof. Bagley, "is the way it shapes how states and the federal government interact. States will have a lot more leverage to negotiate with the federal government over whether to accept new obligations under expanded federal programs."

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