Commentary Magazine


A Master Class on the Constitutionality of ObamaCare

If you want to understand the constitutional arguments of both sides on ObamaCare, watch this debate at Harvard Law School last week among Randy Barnett, Charles Fried, and Lawrence Tribe, three of the finest constitutional lawyers in the country.

It seems safe to say that those who pushed ObamaCare through the Congress last year never thought it would be subject to a constitutional challenge as compelling as Barnett’s. His case against the Patient Protection and Affordable Care Act is a tour de force that begins with a couple of “thought experiments” – one designed to demonstrate that an economic mandate is fundamentally different from economic regulation or even economic prohibition; another, to establish that the ObamaCare mandate is unprecedented.

In reply, Fried argues that, under the Commerce Clause, Congress can require citizens to do whatever it wants them to do, if what it wants them to do substantially affects interstate commerce – a position that renders the Commerce Clause a plenary power over the economy limited only by the Bill of Rights. Tribe then holds that no personal liberties under the Constitution are violated by requiring citizens to buy health insurance. The video ends with Barnett’s five-minute rebuttal.

In my view, Barnett beat a two-man tag team that was slightly dazed to be wrestling with the issue in the first place. But there are strong arguments on both sides. Perhaps the best in favor of ObamaCare is the statement that Walter Dellinger submitted in Congressional testimony earlier this year, which summarizes the case with a concision that is (almost) compelling — until you listen to Barnett.

The fact that five courts have so far split 3 to 2 on the issue suggests that it could ultimately go either way (perhaps depending on how Anthony Kennedy is feeling the morning of oral argument). It will be worth your time to watch the video and decide for yourself.