November 26, 2015

The Constitutionality of the Individual Mandate: The Very One-Sided Fordham Debate. [video]

There are few things in politics or the law quite so enjoyable as watching one use words to bludgeon and destroy a weak or faulty idea.

Recently (as in, on Monday of this week) the University of Utah‘s SJ Quinney College of Law hosted the Fordham Debate. The topic for the two Ivy League educated scholars who would take up opposing sides?

Be it resolved that the individual mandate provision of the Patient Protection and Affordable Care Act is constitutional under the commerce clause of the U.S. Constitution.

Yeah. Pretty much the lodestone for the entire political right’s anger at the elected left and why Obama, for all his panache, brilliance, and Vulcan-like demeanor, has lost the blessing of nearly  a majority of Americans.

And we all love debates, right?

In favor of the resolution (that the individual mandate is constitutional) was David Orentlicher, a JD/MD with two of his degrees from Harvard.  He is the Samuel R. Rosen Professor of Law, Co-director of the William S. and Christine S. Hall Center for Law and Health at Indiana University Robert H. McKinney School of Law – Indianapolis.

Opposing the resolution was Jonathan Adler, a Yale (and George Mason)  man, an attorney, professor, and director of the Center for Business Law and Regulations at Case Western Reserve University School of Law (as well as a regular contributor to the Volokh Conspiracy, which says a lot in itself).
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Seriously. Did Orentlicher even have a chance? Was he paid to put forth weak arguments and avoid more than a passing reference to any law (statute, common, or constitutional)?

English: Barack Obama signing the Patient Prot...

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Having earned my JD from SJ Quinney and listened to my share of left leaning professors pontificate, I was more than a bit surprised that a more able defender of Obama’s biggest legislative accomplishment. In the end, though, his argument boiled down to something like this: the healthcare plan won’t work without the individual mandate, so therefore it’s legal. 

Never-mind precedent or the constitution…

Take an hour, and watch the debate. I think  you’ll enjoy, and learn from, the arguments both for and against the individual mandate part of the Affordable Care Act (may it die a quiet death before the Supreme Court this year).