September 4, 2012

Cornell Professor, Policy Expert Debate Obamacare

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Addressing a packed room of students and faculty in the Cornell Law School, two distinct political minds squared off in a debate Tuesday over the Supreme Court’s June 28 ruling to uphold most of President Barack Obama’s Affordable Care Act.

At the debate, Ilya Shapiro, a senior fellow at the Cato Institute, a right-of-center think tank based in Washington, D.C., and Prof. Michael Dorf, law, presented views from opposite sides of the political and legal spectrum. They engaged in a vigorous analysis of the court’s decision and the motives of the justices.

The debate was sponsored by the Cornell chapter of the Federalist Society, which promotes conservative and libertarian theories in the justice system. Noted legal minds –– such as Robert Bork and current Supreme Court Justices Antonin Scalia, Clarence Thomas and Samuel Alito, as well as Chief Justice John Roberts –– count themselves among past members of the group.

At Tuesday’s event, Shapiro argued that the Obamacare ruling –– which upheld the controversial individual mandate that forces Americans to buy health insurance or pay a penalty –– was in fact a victory for conservatives. In upholding the individual mandate as a tax clause, but not under Congress’ commerce clause, the court, Shapiro said, limited the coercive reach of Congress.

“[It forbid] compelling activity in order to regulate it,” he said, arguing that the federal government should not be able to order economic activity into existence and then claim the ability to regulate it.

Still, Shapiro was highly critical of the ruling itself. He repeated multiple times that Roberts, who joined the more liberal justices in upholding the law, had made a “political decision.” Roberts, he said, had sought a way to uphold the health care law while still avoiding an expansion of the federal government’s power, and had not operated according to purely legal principles.

Dorf, in response, argued that the political stakes of the court’s ruling were “very high, while the judicial and constitutional stakes were relatively low.” Dorf said that in Congress’ history, there has been essentially no precedent mandating citizens to perform an activity, such as buying health insurance, as it did with Obamacare.

Since Congress could essentially achieve anything it wanted without such a coercive mandate, the decision that such a mandate could not be justified under the commerce clause was essentially meaningless, Dorf said.

“If we accept that Congress has never done this before, then it is simply not important that they used a power they have used once since the beginning of the Republic,” Dorf said.

The forum appeared to be a debate in name only and functioned much more as a dialogue, with both participants exchanging jokes. Shapiro playfully called Dorf’s argument that liberals had won a nine to zero victory on the taxing power of the mandate “too cute.” Dorf routinely elicited chuckles from the crowd by poking fun at an ineffective Congress and pointing out the legal advantages of the Democrats creating a program called “Shmedishmare” to replace Medicare.

The discussion, however, was not strictly limited to the legal realm.

Asked whether a Republican sweep of Congress and the White House would yield a full repeal of Obamacare, Shapiro said that he believed it would, if “Republicans have the spine to do what they actually promised to do … [which is] never a sure thing in Washington.”

Dorf, however, concerned himself with the legislation with which a Republican president would replace Obamacare. He argued that the popular provisions of the law, which some Republicans have promised to safeguard –– such as allowing young adults to stay on their parents’ health care plan until the age of 26 and preventing insurance companies from dropping those with preexisting conditions –– would essentially be keeping “the whole enchilada [Obamacare],” untouched.

Original Author: Will Ryan

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