Federalist Society Panel Discussion Examines Constitutionality of Affordable Care Act
Web Editor - Published: March 29, 2011
“Is it proper to require people to engage in an economic activity?” asked Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, during a panel discussion on health care reform hosted on the Delaware campus by the student Federalist Society on Monday, March 28th.

Following a welcome from Federalist Society President Dawn Pinault, Associate Professor Thaddeus Pope, who served as the panel moderator, introduced the three speakers. Associate Dean for Faculty Research & Development Erin Daly gave an overview of the history of commerce clause jurisprudence. Visiting Associate Professor Andre Smith discussed the tax consequences of the Health Care Reform Bill and offered a look at what the Constitution says about taxation. Mr. Shapiro spoke last, addressing whether the Minimum Essential Coverage Provision (Section 1501), or “individual mandate,” of the Affordable Care Act is constitutional.

Professor Daly touched on several major cases that have impacted commerce clause jurisprudence, such as Gibbons v. Ogden and McCulloch v. Maryland. She concluded of the individual mandate, “This really is unprecedented.” She noted, however, that as a legislative body, Congress is not, and should not, necessarily be bound by precedence the way a court is.

In his remarks, Professor Smith asked “Whether compulsory actions are enforceable on the citizenry,” and whether the taxation powers granted to Congress allow for them to use taxes as a regulatory mechanism. To that end, he gave an overview of what the Constitution said about taxation and contrasted it with the far more limited powers granted in the Articles of Confederation that the Constitution replaced. He also discussed other compulsory activities mandated by the federal government such as childhood education requirements.

Mr. Shapiro called the “individual mandate” the linchpin of constitutional challenges to the Affordable Care Act and said, “This is not about health care. This is about whether we have a government of limited, enumerated powers, or one with a general police power.”

“Federalism is meant to protect individual liberties,” said Shapiro, adding, “We have to have certain limits on federal power. If this goes through – the individual mandate – I challenge you to find any principled limits.”

Ilya Shapiro is the editor-in-chief of the Cato Supreme Court Review. He graduated from Princeton University and earned a Master’s Degree from the London School of Economics. After earning his J.D. from the University of Chicago Law School, where he as a Tony Patiño Fellow, he clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. He also served as an advisor to the Multi-National Force in Iraq on rule of law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs and Cleary Gottlieb. A frequent commentator on a host of legal and political issues, Mr. Shapiro has appeared on a variety of television and radio outlets including CNN, Fox News, ABC, CBS, NBC, Univision, "The Colbert Report," and American Public Media's "Marketplace."