The Catholic University of America



Experts Square Off Over Constitutionality of Health Care Reform

A microcosm of the national debate over health care reform unfolded in the Columbus School of Law’s Slowinski Courtroom on March 13, as leading experts debated the constitutionality of the Patient Protection and Affordable Care Act, signed into law by President Obama in 2010. 

“Is the Health Care Reform Constitutional?” aired the argument on multiple sides of the question from Dom Perella (right) an associate with the DC office of Hogan Lovells, Ilya Shapiro (center), a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, and Ilya Somin (left), an associate professor at George Mason University School of Law.
Followed closely by a standing-room-only-audience, the debate was moderated by Catholic University law school Professor Mark Rienzi, and was sponsored by the American Constitution Society, the Federalist Society, and the CUA Health Law Society.
“Top notch advocates from both sides debated the issue, teeing it up right before this is argued before the Supreme Court, ” said CUA Law Professor Suzette Malveaux, who watched the proceeding.  “I think the collaboration among different student groups and the timing really helped make this a successful event.” 
Somin and Perella kicked things off by debating the most widely publicized feature of the law, the individual mandate. Somin argued that prohibiting inactivity was an unprecedented exercise of the interstate commerce power that would morph into a general police power.  According to Somin, the mandate was not “proper” under the Necessary and Proper clause due to the lack of any limiting principle. 
Perella countered that rising health care costs are a national problem that cannot be resolved by the states, making the mandate “necessary and proper” to the enforcement of a national regulatory scheme. 
The discussion then shifted to the expansion of Medicaid expansion under the health care law. Although these provisions have received less media attention than the individual mandate, they have been challenged by 26 states.  Citing South Dakota v. Dole,  Shapiro argued that the Medicaid provision was unconstitutionally coercive under the Spending Power, because states that failed to cooperate risked losing all their federal Medicaid funding. Perella defended the law by pointing out that no legislation had ever been struck down by the Supreme Court on these grounds, and that there was no way for courts to determine at what point such conditional federal grants become unconstitutional.

After the lively exchanges, the speakers entertained questions from the audience, and then continued to discuss the issue with students over refreshments in the atrium.