Few legal topics are more topical than the constitutionality of the Affordable Care Act, which was upheld by the Supreme Court in June but continues to inspire debate leading into Election Day.
That timeliness made the health care law a perfect jumping-off point for Professor of Law Alison LaCroix’s First Monday lecture at the Standard Club downtown on Oct. 1. First Monday is an annual event held in Chicago on the first day of the Supreme Court’s new term (always the first Monday in October) featuring a Chicago Law professor’s take on the issues currently facing the high court. This year, LaCroix also delivered her First Monday lecture in Washington and New York.
LaCroix used the health care case – National Federation of Independent Business v. Sebelius – to talk about the past, present, and future of federalism cases in the Supreme Court, as well as the multiple meanings of federalism.
LaCroix is a legal historian who teaches and researches federalism, constitutional law, federal jurisdiction, and law and literature. She talked about the healthcare case through the prism of many previous federalism cases as a hall of more than 100 alumni listened, lunched, and asked several questions.
“Speaking to the alumni was a treat,” LaCroix said. “I expected that, as Chicago graduates, they would come to the talks having done the reading, so to speak, and they did – ready with questions about federalism, the Anti-Injunction Act, the meaning of the Necessary and Proper Clause, and the future of congressional regulation under the commerce power.”
LaCroix said that the health care case showed that, when it comes to the Supreme Court, “the taxing power is reaching a new prominence.” That’s because the law’s individual mandate to buy health insurance or face a penalty was upheld based on the federal government’s power to tax. Conversely, the high court was not swayed by government arguments under the Necessary and Proper Clause or the Commerce Clause. The argument for the former was that Congress had the power to pass the mandate to carry out “an existing regulatory scheme”; and for the latter, it was that health care is a national market, and therefore Congress has the right to regulate it. But the taxing power was the only one that survived judicial scrutiny.
The decision outlined not just what Congress could do, but what it couldn’t, LaCroix said. For example, the law’s requirement that states expand their Medicaid coverage or lose existing federal funding was seen as coercion, or rather, “too big of a stick,” LaCroix said, and was rejected. So in some ways, the decision also limited federal power.
“When do incentives become coercion? As Chicagoans, we know – they don’t. They just become stronger and stronger incentives,” LaCroix said, to audience laughter.
LaCroix, being a legal historian, gave perspective from the past to illuminate the Supreme Court today. The federalism question of the 18th and 19th centuries was, “What can Congress do in the name of the states?” In the 20th and 21st centuries, the question has been, “What can Congress compel states to do?”
LaCroix also pointed out the apparent inconsistencies in many historic federalism cases. Take, for example, cases involving the Commerce Clause. Way back in Gibbons v. Ogden (1824), the Court ruled that the commerce power permitted Congress to regulate interstate commerce, and that federal regulation overrode conflicting state law. Wickard v. Filburn in 1942 seemed to strengthen the power of the Commerce Clause much further, allowing the federal government to set quotas on home-consumed wheat. In the case, an Ohio farmer was penalized by the federal government for growing more wheat than was allowed, even though he argued it was for personal use on his farm. The Supreme Court said that because the federal government could regulate an interstate market in wheat, it could prohibit Filburn’s activities.
This was seen as the “high-water mark” on what the Commerce Clause can do, LaCroix said. “If they can regulate home-grown wheat, what can’t they do?”
But LaCroix also provided cases in which the commerce power was limited, such as U.S. v. Lopez (1995), when the court ruled that the federal government could not regulate guns in school zones under the clause. The underlying activity must be economic, the Court said.
And of course, LaCroix pointed out, the Commerce Clause was rejected in the health care decision.
Before and after LaCroix’s talk, alumni mingled and caught up on work, their families, and memories of the Law School.
Barbra Goering, ’77, who is a lawyer at a small firm, said she came to see friends and “broaden my horizons.”
“I enjoyed the talk,” she said. “I haven’t thought about constitutional law in a long time.”