At a Law School known for broad debate, it seemed natural for a packed room of faculty members to gather mere hours after the U.S. Supreme Court announced its landmark Affordable Care Act ruling, to discuss the decision and its ramifications.
The University of Chicago Law School scholars used a weekly “Work-in-Progress” workshop, normally devoted to critiques of as-yet unpublished scholarly work, to tackle the fresh decision. Over the course of the wide-ranging, 75-minute discussion on Thursday, June 28, the topics ranged from Chief Justice John Roberts’ surprise compromise vote to how the decision affects the reach of the Commerce Clause of the U.S. Constitution, which gives Congress the power to regulate commerce between states.
Although this WIP represented a rare deviation from its usual purpose, the rigorous debate and inquiry remained the same.
“What is most unique about our WIPs is the forcefulness of the questions,” said Geoffrey Stone, the Edward H. Levi Distinguished Service Professor, who started the lunches in 1987 when he was dean of the Law School. “It is no-holds-barred. It is civil and polite but unrestrained with the forthrightness of their questions.”
The discussion was comprehensive and lively, with many questions asked and explored. Faculty members discussed the speed with which the healthcare law went from being widely expected to survive legal challenges, to being seriously threatened in oral arguments, before finally being upheld by the Supreme Court on unexpected grounds. Others discussed whether the Court’s rejection of the ACA’s requirement that states expand Medicaid was because the provision reached too far, crossing a gray area into coercion.
Several times, scholars came back to the high court’s finding that while the individual insurance mandate, which calls for all Americans to buy health insurance or pay a penalty, is not within Congress’ power to regulate interstate commerce, as the administration had argued, the mandate is constitutional under Congress’ power of taxation.
Faculty members were surprised that in the Court’s rejection of the Commerce Clause argument, the justices did not better detail how its decision may affect other uses of the Commerce Clause. But the participants speculated that the ruling will discourage some specific acts by Congress.
“The privatization of Social Security is off the table,” said Aziz Huq, Assistant Professor of Law, referring to proposals for changing Social Security to allow individuals to invest in private funds. The only way such a change might survive, he said, would be for Congress to do it through its power to tax, though others disagreed that was even possible.
Bernard Harcourt, the Julius Kreeger Professor of Law & Criminology and Chair and Professor of Political Science, said legislators now have an incentive to structure bills so that they do not rely on the powers granted under the Commerce Clause.
“Why would we ever use the Commerce Clause when we can so easily transform any social policy issue into a tax matter?” summed up Harcourt.
In the media, Law School faculty have been active commentators on this historic legal case, writing op-eds, giving interviews, and joining the discussion on Twitter. Click here for a complete compilation of Law School scholars’ responses to the Affordable Care Act ruling.
—Prof. Jacqueline Stewart
