Supporters unprepared for constitutional debate

By Ed Hassell

In a court of law, there are always clear differences between a political argument and one based on sound legal reasoning.

If you need a prime example of the disconnect between the two, you should have been at the public Oxford-style debate held by the Brookings Institution in Washington, D.C. on March 2. The debate centered on the constitutionality of the health care law’s individual mandate—specifically arguing the ruling passed down by two federal judges already that the mandate to purchase insurance is unconstitutional.

Arguing the unconstitutionality of the law was the lead outside counsel from the Florida ruling (which threw out ObamaCare entirely) David B. Rivkin Jr., who successfully represented 26 plaintiff states and the National Federation of Independent Business. He was joined by Ilya Somin, an assistant professor of law at the George Mason University School of Law. Arguing for the mandate’s constitutionality were Walter Dellinger, a former solicitor general in the Clinton administration, and Simon Lazarus, public policy counsel for the National Senior Citizens Law Center.

As pointed out by moderator William Galston, the topic of the debate remains extremely important, as it is one of the significant controversies over the meaning of the Constitution and one that will almost surely be decided by the U.S. Supreme Court. A recent Harris/Interactive Health Care poll found that half of U.S. adults oppose the individual mandate while only 22 percent support it.

During the debate, each speaker had ten minutes to present his argument during the first round, which was followed by a five-minute rebuttal round. Following this was roughly an hour of question and answer followed by a one minute closing statement from each participant.

It was clear from the outset that the side making the valid legal argument was led by David Rivkin, experienced and poised from his win in court. In contrast, the speakers arguing for the law displayed the same condescending arrogance that has characterized many leftist arguments since the beginning of the debate. Rivkin and his partner Somin—who like the Florida judge used Obama’s own words against him—made a clear and compelling case that to accept the mandate as constitutional meant upsetting the balance of the separation of powers.

“It violates centuries of established case law, and is fundamentally different from any law Congress has ever enacted to regulate commerce,” Rivkin said. “No meaningful limiting principle can be found and, therefore, under that logic all inactivities can be swept under the commerce clause.”

Rivkin noted that the federal government was nervously trying to make the argument that health care was unique.

“Ladies and gentleman, it ain’t true,” Rivkin said. “There’s inevitability of consumption across a significantly large strata of population in every market, including market for luxuries … and cost shifting is ubiquitous in modern economy.”

Dellinger responded not so much with legal arguments but by simply avoiding the challenge and saying the case was decided back in 1824 when Chief Justice Marshall wrote that “the commerce clause confers upon Congress the ability to regulate that commerce which concerns more states than one.” He also described this mandate as less intrusive than Social Security or Medicare.

“I have no doubt [The Supremes] would strike down a requirement that you eat broccoli,” Dellenger said with more than a hint of condescension.

Somin took his turn backing up Rivkin by actually quoting from the Constitution “something that law professors rarely do” he pointed out. He also took a swipe at Dellinger’s contention that government would never regulate what we eat.

“The people nearby here on Capitol Hill, they have a long history

of passing special interest legislation of various kinds, and there’s numerous industry and corporate interest groups who would love to be able to lobby for bills allowing Congress to mandate the purchase of their goods,” Somin said.

Somin argued that the mandate was a penalty not a tax—even though president and his administration have argued both before the public.

Lazarus and Dellinger would make a few more rambling comments that that led to no serious legal argument. Lazarus called Somin an articulate proponent of the “Libertarian agenda behind these cases” and then quoted Mitt Romney who included a mandate in Massachusetts health care system, as saying “free-riding on the government is not libertarian.”

“This is not a fundamental liberty interest at all; it’s, at best, a trivial personal liberty interest because of the fact that the people who go without insurance are really shoving their costs off on other people,” he said.

“The actual law is not what the Supreme Court says, but what the Constitution says,” Somin reminded the audience.

In perhaps the biggest news of the day, Dellinger made a bold prediction that the vote in the Supreme Court would not even be as close as predicted (“At least six to three,” he said) and that Chief Justice Roberts would assign the opinion to himself for the Court. Then he really put his foot in his mouth.

“I’m willing to hold up a sign saying Ilya Somin and David Rivkin are smarter than I am — for an hour out front of this building — if I’m wrong about this,” he said.

How many volunteers out there would like to help us paint the signs?