In a recent development that should shock no one, the U.S. Supreme Court this morning agreed to review the constitutionally of President Barack Obama’s signature policy achievement, which is the Patient Protection and Affordable Care Act, also known as Obamacare. This means that, before the very end of the current SCOTUS Term in the summer of 2012, the justices will rule on the validity of this sweeping legislation (unless of course they try and avoid the question on jurisdictional grounds, as Judge Brett Kavanaugh of the D.C. Circuit recently did — a path that may appeal to Justice Kennedy, as suggested by Professor Noah Feldman, and a path that the Court itself highlighted just by mentioning the jurisdictional issue in its certiorari grant).
In the meantime, there will be quite enough dinner party chit-chats about the new health care reform law and its constitutionality.
Over the weekend, at the Federalists Society’s National Lawyers Convention, here are some of the key discussions, and some of the speakers:
”RESOLVED: Congress Acted Within Its Authority in Enacting the Patient Protection and Affordable Care Act.
– Hon. Paul D. Clement, Partner Bancroft PLLC
– Prof. Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law School
– Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center”
In this fascinating debate, ably moderated by Professor Resenkranz, Paul Clement and Laurence Tribe outlined their clashing views on the Act’s constitutionality.
Professor Tribe began by providing a little background on the Act. In March 2010, it was signed into law and represented Congress’s attempt to tackle the health care crisis — a crisis that involves at least 17 percent of our GDP. He pointed out that health care is very much unlike other markets because hospitals don’t turn away patients, which will mean that the health care costs of the people who are uninsured effectively get passed along to everyone else.
The ”individual mandate” provision of the Act attempts to encourage coverage by imposing some tax penalties on the people who do not have/do not buy any health insurance. The new provision will encourage everyone to purchase coverage, and will raise revenue from the people who do not. This provides an incentive for people to acquire heath insurance in advance of when they will actually need care, which is much more efficient and effective than the status quo. It’s common knowledge that pretty much everyone will, at some point in their lives, need health care, so why should we wait until they either get hurt or sick before we deal with the problem?
With approval, Tribe note that the decisions by the Sixth Circuit and the D.C. Circuit upholding the validity of the Act. He also noted that the distinguished conservative jurists such as Jude Jeffrey Sutton and Judge Laurence Silberman have both written in defense of the law.