Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.
Chris Travers says:
One point Justice Dubofsky made is that what is actually being regulated is the purchase of medical care and payment for it. However, even if taking this view, wouldn’t that suggest as-applied challenges for part-time expats be also valid (perhaps not being able to require purchase of insurance for times when one is out of the country)?
It seems to me that it is neither necessary nor proper to require someone to purchase insurance that won’t presently cover them…..
April 30, 2010, 1:58 amGene Madison says:
Good Video. In my opinion, Mr. Kopel made excellent points, though I wish he had gone further, I think his argument was sufficient. If you can’t quote the constitution directly, and you have to quote other judgements to make your argument, then I don’t think you have a full understanding of the constitution. The constitution should be the starting point of every constitutional question…. Unfortunately, people have been led to believe that the courts precedent is law… when in actuality, all legislative powers are exercised by congress. It’s the courts duty to declare those thing in which are unconstitutional… not to make law.
April 30, 2010, 5:51 amAnderJ says:
@Gene Madison: did you just imply that any constitutional case law outside quoting the Constitution is judicial activism? Wow.
April 30, 2010, 6:37 amPyrrho says:
@Anderj:
Actually, he went farther than that. He directly said that court precedent is not law, and from that directly implied that any case interpreting the constitution was judicial activism.
April 30, 2010, 9:25 amuh_clem says:
Given the Rorschach blot that is the US Constitution, I’m more persuaded by actual precedents than by someone spouting off about what he or she thinks the constitution says (or thinks it should say). YMMV.
April 30, 2010, 10:21 amSmooth, like a Rhapsody says:
I have heard the 9th Amendment referred to as a Rohrschach test; but never the entire Constitution. Way to redefine “intellectual nihilism”, clem.
April 30, 2010, 11:12 amChris Travers says:
Also one of the listeners asked about the fact that most of the plaintiffs are Republican AG’s. I think there are two reasons for this.
1) Party politics. Here in Washington State, there has been a conflict between Democratic governor and Republican AG on this issue.
2) I suspect that there is a division between rural and urban America too in how the federal government is perceived. I suspect that one major issue with rural America and the federal government is that the feds just don’t pay their way and this costs us, the taxpayers, a great deal. These are Republican stronghold areas, so it is a strong correlation.
April 30, 2010, 11:46 amChris Travers says:
Also, I will say I have found Anderson’s points on this blog in favor of the Constitutionality of the bill to be more persuasive than Justice Dubofsky’s…. I would argue that the debate on this blog rocks :-)
April 30, 2010, 11:59 amSteve says:
When you consider that most of the plaintiffs are Republican AGs who are also running for governor (the one Democratic plaintiff reportedly having been strong-armed into joining the lawsuit by a threat to cut his office funding), the analysis becomes even clearer.
April 30, 2010, 12:00 pmWill says:
Kopel was great. Dubofsky was embarrassing because she is a former justice and yet she relied on policy arguments to make her case and summarize her views. She also ignored the long term implications of her arguments. She is typical of most lib legal scholars, even the ones at the top. Pathetic.
April 30, 2010, 12:56 pmChris Travers says:
One thing I can tell you is that the lawsuit is controversial here in Washington State, that Rob McKenna is not running for governor, and that even Democratic governors complained about state Medicaid obligations at least up until the party drew a line on this legislation.
April 30, 2010, 1:22 pmChris Travers says:
Yeah. I was wondering why the ACLU didn’t bring someone in who was better qualified. To her credit Dubofsky started off by saying she wasn’t an expert on any of the related issues, so she was sort of destined to lose. But why bring in someone merely because she wrote an op ed piece who is clearly more interested in policy rather than the legal questions?
Something tells me the ACLU is not as neutral in that area as they claim….
April 30, 2010, 1:30 pmh2u says:
I previously did not have much of an opinion on the constitutionality of the recently signed health insurance legislation [HCL] as IANAL, but I watched the entire video hoping to achieve an understanding of the issues at hand. I was quite disappointed to see that while David Kopel brought actual constitutional arguments to the table, Jean Dubofsky, on the other hand, brought nothing but hyperbole and misdirection.
I have to believe that there is somebody more knowledgeable of the constitutionality of this issue on the Pro-HCL side than Dubofsky. If there isn’t, that’s truly a shame. I always appreciate well-thought out arguments from both sides in a debate — in this case it was truly one sided.
Meh.
April 30, 2010, 1:56 pmChris Travers says:
The main argument to the Constitutionality of the mandate is that it is within Congress’s power to ban consideration of pre-existing conditions in medical insurance coverage, and that it is necessary and proper to have an individual mandate in order to allow that to happen. Dubofsky mentioned this, to her credit, but I didn’t think she was very clear or articulate on that point. Anderson’s posts on other threads are much more articulate and clear.
However, even if we accept this argument, it only addresses the power of Congress to enact such a mandate. The question is then how Congress can mandate that such a mandate be enforced. If it’s a violation of law subject to a fine, you run into all the standard protections against unreasonable searches and seizures, due process requirements, and the like. (For example, suppose Congress were to rewrite the entire federal criminal code changing fines to taxes… I think that would violate due process guarantees.) On the other hand, if it’s a tax, then the form of the tax would have to be Constitutional. Kopel’s argument here is that it’s not (I think formalists on the court would agree with him on all points, but I’m not sure about pragmatists). If the pragmatists however uphold the income tax penalty of 2.5% of AGI, I am not sure that they can uphold the minimum penalty because this is not tied to AGI and seems to be a non-apportioned capitation tax.
April 30, 2010, 2:39 pmA. Zarkov says:
I have not watched the entire video of the debate yet, but so far I’m disappointed in Jean Dubofsky. I was looking forward to hearing a good argument as to why Congress has the power to enact the mandate, and so far I’m not getting that from her. Too bad. Although I don’t think the mandate is constitutional, I’m willing to change my mind if I hear a compelling argument.
Most of her opening statement was essentially a policy plug for Obamacare with little more than the usual rhetoric we get from politicians. She attacks a state attorney general on standing, and again on policy. But this does not speak to the ultimate constitutionality of the mandate. An attorney general could have a defective case, but that does not prove every argument is defective.
She skirts around the main issues having to do with the Commerce Clause, the power to tax etc. Her analogy to child support payments is absolutely ridiculous, and in my opinion, she should be embarrassed to make it. She also tells us that Congress has the power to force employers to buy unemployment insurance. But these employers are entities engaged in a business activity, and this this activity that provides the hook for federal authority. Surely she must understand the distinction. At this point point, it looks like she’s just dense or her politics has compromised her ability to present a legal argument.
Perhaps it gets better later. I’m hoping.
April 30, 2010, 2:41 pmSteve says:
If it’s a violation of law subject to a fine, you run into all the standard protections against unreasonable searches and seizures, due process requirements, and the like.
I don’t really understand what this means.
April 30, 2010, 2:48 pmjrose says:
Eugene makes the case.
April 30, 2010, 2:49 pmh2u says:
Chris, thank you for the response and the clarity contained therein.
My question to you: I have heard legislators who voted for the legislation and President Obama himself refer to the “mandate” as a tax in some situations and a fine in others. I’m sure I can dig up the video if necessary, but for the time being assume my assertion is correct. With that being the case, how does one divine the intent of this element of the legislation?
I don’t personally care how the legislation is interpreted, but I would hope that those who wrote it, supported it and signed it would be certain about how it is to be implemented.
It worries me greatly that the story changes based on the political winds…
April 30, 2010, 3:19 pm…and it does speak volumes about the lack of serious thought put into such a substantial piece of legislation.
Chris Travers says:
I don’t know about anyone else, and IANAL, but I think a court would look at the form of the penalty and try to see whether it would be legal as a fine or a tax. However the key issue here is the Glenshaw Glass Company case. In that case, the court had a realization requirement, i.e. that income could not be taxed unless “clearly realized.”
From a formal perspective, there’s a difference between raising taxes on everyone 2.5% and then crediting it back to insurance holders and penalizing those who don’t have insurance. However, is that shadows or substance? I don’t know. Maybe lawyers can hand me cases….
I think the weaker element is the minimum tax penalty since that is no longer tied directly to AGI and cannot be seen as a tax on income.
April 30, 2010, 3:51 pmGuest12345 says:
It must be a tax, how else do governments pay for welfare?
April 30, 2010, 4:15 pmMark Bahner says:
“Given the Rorschach blot that is the US Constitution,…”
Which part of the Constitution do you think is a “Rorschach blot”?
May 1, 2010, 11:41 pm