Steven Toff (left) and Tim­othy Buckley (right) deliver argu­ments on the con­sti­tu­tion­ality of the Afford­able Care Act on Tuesday during a sim­u­lated court pro­ceeding in pro­fessor Martha Davis’ Con­sti­tu­tional Law class. Photo by Dominick Reuter.

Last week, the Supreme Court heard argu­ments on the con­sti­tu­tion­ality of the Obama administration’s Afford­able Care Act, the con­tro­ver­sial piece of leg­is­la­tion that has polar­ized the nation. Ear­lier this week, law pro­fessor Martha Davis’ Con­sti­tu­tional Law class held its own mock appel­late argu­ment on the same case, focusing specif­i­cally on the indi­vidual man­date that requires all indi­vid­uals to obtain health insur­ance. Davis, co-​​director of the the law school’s Pro­gram on Human Rights and the Global Economy, said she often draws from real-​​world court cases to engage her stu­dents. For this “moot court,” or sim­u­lated court pro­ceeding, four mem­bers of the class pre­sented argu­ments — two on each side of the case — and answered ques­tions from the rest of the class who served as justices.

The ques­tion under con­sid­er­a­tion: Is the min­imum cov­erage pro­vi­sion of the Patient Pro­tec­tion and Afford­able Care Act a con­sti­tu­tional exer­cise of Congress’s power under the com­merce clause and the nec­es­sary and proper clause of the U.S. Constitution?

Below are the argu­ments from peti­tioners and respondents.

Peti­tioners (Steven Toff and Tim­othy Buckley):
The Afford­able Care Act is con­sti­tu­tion­ally grounded in both the com­merce clause of the Con­sti­tu­tion as well as the nec­es­sary and proper clause. The chal­lenge to the min­imum cov­erage pro­vi­sion fails on two dis­tinct fronts. First, the pro­vi­sion in and of itself is a con­sti­tu­tion­ally sound exer­cise of Congress’s powers as enu­mer­ated by the above clauses. Sec­ondly, the pro­vi­sion sits within a system of reg­u­la­tory schemes that have long been rec­og­nized as well within the bound­aries of Con­gres­sional power — reg­u­la­tion of the health insur­ance industry.

The power to reg­u­late com­merce is the power to enact “all appro­priate leg­is­la­tion” for “its pro­tec­tion and advance­ment;” to adopt mea­sures to pro­mote its growth and insure its safety”; ”to foster, pro­tect, con­trol and restrain.” Con­gress has the power “to make all Laws which shall be nec­es­sary and proper for car­rying into Exe­cu­tion” other powers granted (such as the com­merce clause).

Fur­ther­more, because the min­imal cov­erage pro­vi­sion sits within a system of com­pre­hen­sive reg­u­la­tions, long held to be within the scope of the com­merce clause, it is jus­ti­fi­able. The court has held that it “is enough that…provisions are an inte­gral part of [a] reg­u­la­tory pro­gram and that the reg­u­la­tory scheme when con­sid­ered as a whole” is within the com­merce power. Not once since the Lochner era has the court inval­i­dated a single pro­vi­sion when such a pro­vi­sion sits within a system of con­sti­tu­tion­ally sound eco­nomic regulations.

Respon­dents (Ajulo Othow and Andrew Kirtley):
In the role of Counsel rep­re­senting the 26 states opposed to the indi­vidual man­date, we argue that the man­date rep­re­sents an unprece­dented over­reach of fed­eral authority.  Our con­sti­tu­tional argu­ments are as fol­lows: the indi­vidual man­date falls out­side of the authority granted Con­gress under the com­merce clause. This authority allows Con­gress to reg­u­late existing com­merce between the states, not to compel indi­vid­uals to enter into eco­nomic activity. The unprece­dented nature of the man­date nec­es­sarily raises the level of sus­pi­cion regarding its con­sti­tu­tion­ality. By over­step­ping its bounds and infringing on the authority reserved for the states, Con­gress has upset the del­i­cate bal­ance between state and fed­eral power that is cen­tral to this country’s system of government.

The indi­vidual man­date is uncon­sti­tu­tional because the power to compel indi­vid­uals into a market cannot be implied as inci­dental to Congress’s authority to reg­u­late inter­state com­merce under the com­merce clause. The government’s argu­ments to the con­trary ignore the fact that our fed­eral gov­ern­ment is one of lim­ited powers. The power to compel people into mar­kets is not a power that Con­gress has.