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Georgetown Law Scholar, Constitutional Accountability Center Counsel
Debate Health Reforms

November 16, 2011

Georgetown University Law Center Professor Randy Barnett and Chief Counsel of the Constitutional Accountability Center Elizabeth Wydra discussed the constitutionality of the Affordable Care Act during a debate at the law school on Nov. 16.

Congress, in passing federal health reforms, overstepped its authority under the Commerce Clause and established a dangerous precedent by requiring individuals to obtain health insurance, Barnett said.

"This has never happened before," Barnett said. "Nothing less than the future of the American Republic is at stake in this case."

Barnett is representing the National Federation of Independent Businesses, whose challenge of the Affordable Care Act was upheld by the U.S. Court of Appeals for the 11th Circuit and will be argued before the U.S. Supreme Court this term.

The unprecedented nature of the mandate to buy health insurance and the fact that Congress could have instead exercised its taxing authority undercut the constitutional arguments that advocates of the law have raised, Barnett said.

But Wydra argued that health care, which hundreds of millions of Americans cannot afford, is precisely the kind of complex economic problem that Congress gained authority to regulate under the Commerce Clause.

With hospitals required to treat patients regardless of their ability to pay, states lack the resources to make up the shortfall, and so those who have private insurance absorb the cost of caring for the uninsured, Wydra said.

The constitution does not confer the right to "freeload off your neighbors," Wydra said, noting that federal law's constitutionality was upheld in an opinion of the U.S. Court of Appeals for the D.C. Circuit written last week by Judge Laurence Silberman, a leading judicial conservative.

The event was co-sponsored by the American Constitution Society, the Drexel Federalist Society, the Drexel Health Law Society and the Drexel Student Liberty Front.