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Law students argue both sides of Affordable Care Act

Steven Toff (left) and Timothy Buckley (right) deliver arguments on the constitutionality of the Affordable Care Act on Tuesday during a simulated court proceeding in professor Martha Davis’ Constitutional Law class. Photo by Dominick Reuter.

Last week, the Supreme Court heard arguments on the constitutionality of the Obama administration’s Affordable Care Act, the controversial piece of legislation that has polarized the nation. Earlier this week, law professor Martha Davis’ Constitutional Law class held its own mock appellate argument on the same case, focusing specifically on the individual mandate that requires all individuals to obtain health insurance. Davis, co-director of the the law school’s Program on Human Rights and the Global Economy, said she often draws from real-world court cases to engage her students. For this “moot court,” or simulated court proceeding, four members of the class presented arguments — two on each side of the case — and answered questions from the rest of the class who served as justices.

The question under consideration: Is the minimum coverage provision of the Patient Protection and Affordable Care Act a constitutional exercise of Congress’s power under the commerce clause and the necessary and proper clause of the U.S. Constitution?

Below are the arguments from petitioners and respondents.

Petitioners (Steven Toff and Timothy Buckley):
The Affordable Care Act is constitutionally grounded in both the commerce clause of the Constitution as well as the necessary and proper clause. The challenge to the minimum coverage provision fails on two distinct fronts. First, the provision in and of itself is a constitutionally sound exercise of Congress’s powers as enumerated by the above clauses. Secondly, the provision sits within a system of regulatory schemes that have long been recognized as well within the boundaries of Congressional power — regulation of the health insurance industry.

The power to regulate commerce is the power to enact “all appropriate legislation” for “its protection and advancement;” to adopt measures to promote its growth and insure its safety”; ”to foster, protect, control and restrain.” Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution” other powers granted (such as the commerce clause).

Furthermore, because the minimal coverage provision sits within a system of comprehensive regulations, long held to be within the scope of the commerce clause, it is justifiable. The court has held that it “is enough that…provisions are an integral part of [a] regulatory program and that the regulatory scheme when considered as a whole” is within the commerce power. Not once since the Lochner era has the court invalidated a single provision when such a provision sits within a system of constitutionally sound economic regulations.

Respondents (Ajulo Othow and Andrew Kirtley):
In the role of Counsel representing the 26 states opposed to the individual mandate, we argue that the mandate represents an unprecedented overreach of federal authority.  Our constitutional arguments are as follows: the individual mandate falls outside of the authority granted Congress under the commerce clause. This authority allows Congress to regulate existing commerce between the states, not to compel individuals to enter into economic activity. The unprecedented nature of the mandate necessarily raises the level of suspicion regarding its constitutionality. By overstepping its bounds and infringing on the authority reserved for the states, Congress has upset the delicate balance between state and federal power that is central to this country’s system of government.

The individual mandate is unconstitutional because the power to compel individuals into a market cannot be implied as incidental to Congress’s authority to regulate interstate commerce under the commerce clause. The government’s arguments to the contrary ignore the fact that our federal government is one of limited powers. The power to compel people into markets is not a power that Congress has.