The Constitutionality of the Patient Protection and Affordable Care Act

Engage Volume 12, Issue 2, September 2011

The topic of the discussion between Professor Jesse Choper and myself is the Commerce Clause and how it relates to the constitutionality of ObamaCare, or, more dispassionately, the Patient Protection and Affordable Care Act. I approach this topic with much ambivalence. As a matter of first principle, I do not have much faith in all the individual mandate arguments that have been raised with great effectiveness and imagination by Professor Randy Barnett of Georgetown University Law Center. Randy is one of the few people who can mesmerize you with his low-key approach. What he says in measured tones may seem at first to be outrageous, only to become more persuasive to audiences as he continues to talk...