Our Pending National Debate: Is Health Care Reform Constitutional? - Article Originated as a Transcript of the Remarks from the Hot Topic Panel Discussion on Health Care Reform Held at the Association of American Law Schools Meeting on January 7, 2011. - Brad Joondeph - 605, Randy E. Barnett - 608, Erwin Chemerinsky - 618, David G. Oedel - 623, and Gillian Metzger - 633

• Publication year: 2011

Our Pending National Debate: Is Health Care Reform Constitutional?

This Article originated as a transcript of the remarks from the Hot Topic Panel Discussion on health care reform held at the Association of American Law Schools (AALS) meeting on January 7, 2011. After the panel discussion, the conversation has continued, and the Mercer Law Review is now publishing several noteworthy perspectives in various forms to provide the most complete picture of the debate. Contributions for this Article include: portions of the original transcript from the AALS panel discussion, a scholarly article by Professor Randy Barnett, a scholarly response to Professor Gillian Metzger's panel remarks by Professor David Oedel, and a Question and Answer session from the AALS panel discussion.

While the transcribed portions of the panel discussion have been lightly footnoted, the supplemental pieces have been edited as scholarly works in accordance with Mercer Law Review's standard editing procedures.

Introduction of Speakers at the AALS Hot Topic Panel Discussion on January 7, 2011

by Brad Joondeph

My name is Brad Joondeph, and I teach at Santa Clara University School of Law. It is my honor and distinct pleasure to moderate the panel this morning. This group represents a terrific lineup of panelists, several of whom have been directly involved in the litigation that is

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currently ongoing throughout the United States. Before getting to the introductions, let me provide a quick summary.

There are currently about twenty cases being litigated in the lower federal courts that challenge-in some way, shape, or form-the constitutionality of the Patient Protection and Affordable Care Act,¹ as amended by the Health Care and Education Reconciliation Act of 2010,² also affectionately known as the ACA or "Obamacare." Thus far, three district courts have dispositively ruled on the merits of the constitutional challenges: one from the Western District of Virginia,³ one from the Eastern District of Virginia,⁴ and one from the Eastern District of Michigan.⁵ So we now have three cases that are essentially in the courts of appeals. There are in the neighborhood of fifteen other cases continuing to percolate in the district courts.

These challenges raise a number of constitutional issues, from the Takings Clause to commandeering to the free exercise of religion to the right to privacy. But there are two issues that have garnered the most attention and raise the most serious constitutional questions. The first concerns the constitutionality of the ACA's so-called "individual mandate," which requires almost every American to acquire "minimally adequate health coverage" by January 1, 2014.⁶ The second concerns the ACA's amendments to Medicaid, amendments that substantially expand the baseline scope of coverage every state participating in Medicaid must offer.⁷ The states that are parties to the Florida ex rel. Bondi v. U.S. Department of Health & Human Services⁸ litigation, which is currently pending in the Northern District of Florida, are challenging these changes to Medicaid as an impermissible intrusion on their constitutionally protected sovereignty-sovereignty protected by the Tenth Amendment, or perhaps the structural principles that the Tenth Amendment presupposes.

Our panelists will be addressing several of these issues-though, like the litigation generally, we will probably focus a great deal on the individual mandate. Let me now introduce the panelists in the order in which they will speak.

1. Pub. L. No. 111-148, 124 Stat. 119 (2010).

2. Pub. L. No. 111-152, 124 Stat. 1029.

3. Liberty Univ. v. Geithner, No. 6:10-cv-00015-nkm, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010).

4. Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010).

5. Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010).

6. ACA § 1501(b).

7. See, e.g., ACA § 2001(a)(1) (requiring participating states to expand Medicaid coverage to all non-elderly adults with incomes up to 133% of the federal poverty level).

8. No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011).

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First, Professor Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center. He is the author, among many fine works, of Restoring the Lost Constitution: The Presumption of Liberty? As directly relevant here, in addition to having delivered several lectures on the topic of today's panel, he has filed amicus briefs in Virginia v. Sebelius, Florida v. HHS, and, most recently, in Thomas Moore Law Center v. Obama, the case currently pending before the Sixth Circuit.

Second, Dean Erwin Chemerinsky is the founding Dean and a distinguished Professor of Law at the University of California-Irvine School of Law. He has been one of the nation's most authoritative commentators and scholars on constitutional law for nearly a generation, and he is the author most recently of The Conservative Assault on the Constitution.¹⁰

David Oedel is a Professor of Law at Mercer University School of Law. There, he heads a team of lawyers and economists exploring whether excessive partisanship in American political life could be reduced through independent redistricting. He is currently serving in special assignment as a Deputy Special Attorney General for the State of Georgia, appointed by Georgia Governor Sonny Perdue, to represent the State of Georgia, and the Georgia Governor in particular, as one of the plaintiffs in Florida v. HHS.

And last, but certainly not least, Gillian Metzger is a Professor of Law at Columbia Law School. She has authored several important articles in the field of constitutional law, including, most recently, Ordinary Administrative Law as Constitutional Common Law¹¹ and Administrative Law as the New Federalism.¹² Relevant to this morning's panel, she has co-authored amicus briefs defending the constitutionality ofthe minimum coverage provision, specifically addressing questions of Congress's taxing power, in Virginia v. Sebelius and Florida v. HHS.

Thanks to all four of you for joining us today, and thanks in particular to David Oedel for organizing this panel discussion. Without further ado, Randy, the dais is yours.

(continued on next page)

9. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).

10. Erwin Chemerinsky, The Conservative Assault on the Constitution (2010).

11. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479 (2010).

12. Gillian E. Metzger, Administrative Law as the New Federalism, 57 Duke L.J. 2023 (2008).

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Turning Citizens into Subjects: Why the Health Insurance Mandate is Unconstitutional¹³

by Randy E. Barnett

In 2010 something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. I realize that writers make lots of factual claims that readers are wise to be skeptical about. I can prove, however, that an economic mandate like this one is unprecedented. If this mandate had ever happened before, everyone reading this passage would know all the contracts the federal government requires them to make, upon pain of a penalty enforced by the Internal Revenue Service (IRS). No reader, however, can recite any such mandate and neither could any reader's parents or grandparents because this has never been done before.

It is not as though the federal government never requires American citizens to do anything. They must register for the military (and serve if called), submit a tax form, fill out a census form, and serve on a jury. Additionally, they must join a posse organized by a United States Marshall. The existence and nature of these very few duties, however, illuminates the truly extraordinary and objectionable nature of the individual insurance mandate. Each of these duties is necessary for the operation of government itself, and each has traditionally been widely recognized as inherent in being a citizen of the United States.

Consider why in 1918 the Supreme Court of the United States rejected the claim that the military draft violated the Thirteenth Amendment,¹⁴ which bars "involuntary servitude."¹⁵ At first glance, conscription surely looks like a form of involuntary servitude. The Supreme Court, however, said that it could not see how "the exaction by government from the citizen of the performance of his supreme and noble duty of

13. These remarks were prepared as testimony before the Senate Judiciary Committee hearings held on February 2, 2011 and a hearing held by the House Judiciary Committee's Subcommittee on the Constitution on February 16, 2011. Together with the Cato Institute, the Author has submitted amicus briefs in support ofthe challenges to the Affordable Care Act in Virginia v. Sebelius in the United States District Court for the Eastern District of Virginia and in Thomas More Law Center v. Obama in both the United States District Court for the Eastern District of Michigan and the United States Court of Appeals for the Sixth Circuit.

14. U.S. Const. amend. XIII.

15. Id.

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contributing to the defense of the rights and honor of the nation . . . can be said to be the imposition of involuntary servitude."¹⁶

Keep that phrase, "supreme and noble duty" of citizenship, in mind. For this-and nothing less than this-is what is at stake in the fight over the constitutionality of the individual insurance mandate. Is it part of the supreme and noble duty of citizenship to do whatever the Congress deems in its own discretion to be convenient to its regulation of interstate commerce? If this proposition is upheld, the relationship of the people to the federal government would fundamentally change: they would no longer fairly be called "citizens;" instead, they would more accurately be described as "subjects."

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