On September 6, the NYU Federalist Society debate on the constitutionality of the Affordable Care Act contained sharply contrasting arguments from prominent legal thinkers, despite the fact that they each opposed the health care reform legislation.

“I am a conservative,” said Michael Paulsen, Distinguished University Chair and Professor at the University of St. Thomas, in beginning his provocatively titled talk, “The Power to Destroy.” “I really am. I am most liberal constitutional law professors’ worst nightmare. I believe... that there is a single correct method to interpreting the Constitution, and that is to follow the original public meaning of the words and phrases as they would have been understood by ordinary English-language interpreters at the time they were adopted in that political and social context. And if the Supreme Court has said something contrary to that, the Supreme Court is wrong.” But, he added, “I come out in a blasphemous wrong way with conservatives on the Obamacare decision.”

Paulsen agreed with the Court’s opinion from Chief Justice John Roberts, who provided the swing vote, which deemed the Affordable Care Act’s individual mandate within Congress’s largely unfettered taxing power. The Constitution, Paulsen said, gave the legislative branch that authority: “I think Obamacare is a stinking, rotten mess, but I don’t think it’s unconstitutional.... Congress has the power to tax.... Congress can tax anything that it can get its grubby mitts on.”

He pointed out that none of the four dissenters on the Supreme Court claimed that Congress lacked that taxing power, but rather that the body specifically said the individual mandate did not constitute a tax. But Paulsen disagreed.

“It does not matter for Congress’s constitutional power to tax what it calls its fees or impositions.... They are all taxes in terms of Congress’s constitutional power. If it walks like a tax, if it waddles like a tax, if it quacks like a tax, if it swims like a tax, it is a tax for constitutional purposes.... It follows from all this, sadly, that the NFIB v. Sebelius case is actually rightfully decided.”

Paulsen added, however, that important issues remained, including the question of whether organizations with a religious affiliation should have to cover health care such as contraception. Nor, despite his begrudging acceptance of the act’s constitutionality, did Paulsen want it to remain law: “What Obamacare taxes is freedom.... I think it’s unaffordable, I think it’s un-American, but I can’t actually say it’s unconstitutional. The power to tax is the power to destroy. The power to elect is the only power to repair. The appropriate remedy for this... is to get this sucker repealed through the democratic process.”

Richard EpsteinRichard Epstein, Laurence A. Tisch Professor of Law, had long been a fierce opponent of the Affordable Care Act, and disagreed strongly with Paulsen about Congress’s power to tax, arguing that its power to address overall federal debt through taxation did not extend to the matter of one state helping to pay the debts of other states.

“If you’re dealing with this thing as an originalist,” said Epstein, “what you really have to do to stick to the Paulsen credo is you’ve got to take a lot of heavy artillery out and blow up virtually every major transfer program that ever existed in the public sector. And frankly, I’m quite happy to do that, except for the fact that you have a lot of reliance costs on these current institutions. It’s very difficult to go back and announce, ‘You know what, Medicare is now unconstitutional. Every 88-year-old person has to go and fend for himself.’ You just can’t do that. But what you can do is you don’t have to yield to new extensions.... I’m going to make peace with what I regard as catastrophic, ignorant, and uninformed decisions endorsed by all nine members of the United States Supreme Court, who insist without quoting the full language or understanding what it means that the spending power contained in the taxing provisions is broad.”

Epstein characterized the health care legislation’s constitutional rationale as unprecedented. “In the entire history of the United States, there has never been a tax on any form of inactivity ever. Nobody who drafted this thing ever thought that you could do it. Right now I could impose a million taxes on every one of you because as you are sitting here, the fact that you are derelict and the fact that there are nine billion things that you are not doing with your time.... The point is this is not a tax on any of the permissible objects of taxation. It is simply a random form of tyranny that they can impose first on one, then on the other.”

Michael McConnell, Richard and Frances Mallery Professor of Law at Stanford Law School and a former judge of the U.S. Court of Appeals for the Tenth Circuit, posed several questions in response to Paulsen’s and Epstein’s arguments, including one in regard to Paulsen’s specific defense of the act’s constitutionality under a necessary and proper clause argument. McConnell also suggested that Congress’s taxing power was more limited than Paulsen had asserted.

Posted on September 14, 2012