David Rivkin and Lee Casey debate Jack Balkin on Healthcare Reform

Information courtesy of the University of Pennsylvania Law Review

A Healthy Debate: The Constitutionality of an Individual Mandate

A major focus of the Obama Administration has been the reformation of the health-care system in the United States. Despite a strongly divided government, the general sentiment remains in Congress that something must be done to remedy the health-care situation.

The debate, in this case, springs to life when the two opposing sides are confronted with the proposition of an Individual Insurance Mandate—a federal requirement that will impose the purchase of health insurance on every citizen of the United States. In this imperative discussion, appropriately titled A Healthy Debate, David Rivkin and Lee Casey face off against Professor Jack Balkin in hopes of bringing clarity to the constitutionality, or violation thereof, of the Individual Insurance Mandate.

The debate began with a well-presented argument by David Rivkin and Lee Casey. The question they begged an answer to, which had yet to be clearly addressed by any proponents of Obamacare, was this: What section of the Constitution would the proposed mandate be sanctioned by? The “obvious” answer to this question, as it is has been argued by many, is that the mandate is permissible under the guidelines of the Commerce Clause (Article 1, Section 8 of the Constitution).

The Commerce Clause argument is inherently flawed. David Rivkin and Lee Casey explain this point clearly and logically by examining the limitations the Court has set in its modern Commerce Clause jurisprudence. Following the trail blazed by the courts of the United States, Rivkin and Casey concluded that the mandate is not permissible. In fact, it is much less defensible than the laws struck down in the United States vs. Morrison or United States vs. Lopez cases.

The next argument against David Rivkin and Lee Casey would be that the Individual Insurance Mandate could be ushered into existence via the Taxing and Spending Clause. This is yet another flawed argument. Even when interpreting the Taxing and Spending Clause in the loosest sense, Congress is never permitted to use taxes as a means of regulating conduct that is otherwise beyond its power. Were Congress allowed to do this, the vertical separation of powers in the United States—the stratification of State and Federal Governments—would be eradicated. A change like this would result in the breakdown of the fundamental guards to personal liberty that were created by the framers of the Constitution.

A full transcript of the opening statements of David Rivkin and Lee Casey are available at the article “A Healthy Debate: Transcription of the Opening Statement.”


One thought on “David Rivkin and Lee Casey debate Jack Balkin on Healthcare Reform

  1. Steve Patriot

    I believe that David Rivkin is correct in his belief that if we allow the interpretation of the Tax and Spending Clause of the Constitution to support individually mandated healthcare, that it would eradicate the system of separation between state and federal governments. It is impossible for a federal government, in a country as big as America, to know what the citizens of states need more than the states, themselves.


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