On Wednesday, March 9, Loyola hosted a debate about the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act ("Affordable Care Act"). It featured two renowned constitutional law scholars: Adam Winkler, professor of law at UCLA, and Robert Pushaw, the James Wilson Endowed professor of law at Pepperdine Law School.
The debate focused on the question of whether the individual mandate is a constitutional exercise of Congress' Article I power to "regulate commerce among the several States" and to "make all Laws which shall be necessary and proper" pursuant to this power. The individual mandate is the part of the Affordable Care Act that has drawn the most attention and controversy, legally and politically. Although challenges to the mandate have been raised on numerous legal grounds, the commerce clause issue seems to have the greatest legal traction so far. And Congress expressly relied on this power in enacting the law.
This issue has led to a split in the courts: Of the five district courts that have considered challenges on the merits so far, three have upheld the Affordable Care Act, while two have ruled that the mandate is unconstitutional. The most recent decision came on March 8th by a Florida District, which struck down the entire Affordable Care Act because of its finding that the mandate was unconstitutional and could not be severed from the rest of the law. Appeals are pending in the Fourth, Sixth, Eleventh, and District of Columbia Circuits. Everyone expects the issue to ultimately reach the U.S. Supreme Court for final resolution.
In the meantime, the issue has also generated a great deal of scholarly debate. Prof. Pushaw has argued that the mandate is not a constitutional exercise of the commerce power because the individuals being regulated have not voluntarily engaged in "commerce" even in its broadest sense. Prof. Winkler, on the other hand, has argued that the mandate is a "necessary and proper" part of Congress' larger scheme for effectively regulating health insurance under the Affordable Care Act; and regulating health insurance has long been understood to be a legitimate exercise of the commerce power. During the debate, Professors Pushaw and Winkler presented two very different visions of the commerce clause power, as well as coming to very different legal conclusions about the constitutionality of the mandate. They seemed to agree on one thing, though: the unpredictability of the Supreme Court on this issue. No one wants to make any firm predictions - we'll all just have to wait and see. To view a recording of the debate, click here (RealPlayer required).
The panel was moderated by Brietta Clark, professor of law at Loyola Law School, Los Angeles. The event was co-sponsored the student chapters of the American Constitution Society and the Federalist Society, and organized by student leaders Jason Campbell, Elian Dashev and Billy Tanenbaum.