Most constitutional law professors will admit that the Commerce Clause — which gives Congress the power to regulate interstate commerce — isn’t exactly the sexiest part of their syllabus.
That dry subject matter has been spiced up this year by the legal fight over the Patient Protection and Affordable Care Act, which implicates a host of interesting constitutional issues including the Commerce Clause, states’ rights and the government’s authority to tax and spend. The U.S. Supreme Court is hearing oral arguments about the reforms this week.
“I think that just about everyone who teaches constitutional law is using the health care law when they get to the Commerce Clause,” said David Orentlicher, a professor at Indiana University Robert H. McKinney School of Law. “I’m betting that a lot of constitutional law professors will be having their students follow the arguments.”
Professors who teach health care law have also made the reforms’ legality a cornerstone of their curricula. Law students have even gotten directly involved by submitting amicus briefs. (Law professors have been far more involved on the amicus front, with groups representing constitutional law, health care law and tax law professors submitting briefs. In all, the case has spurred a record amicus 136 briefs.)
Washington and Lee University School of Law’s Black Lung Clinic submitted a brief in support of the Affordable Care Act. The clinic argued that if the Court strikes down the health care reforms in their entirety, 704 coal miners and their spouses might lose their benefits under the Black Lung Benefits Act, amended by the reform bill.
Two 3Ls wrote the brief — Parker Kasmer and Chris Miller.
“On the one hand, you have the academic exercise of crafting a legal argument from a complex area of law,” Kasmer said. “And then there’s the practical experience of writing a brief and submitting it to the Court in arguably one of the most significant cases of our generation.”
Similarly, Emory University School of Law’s Barton Child Law and Policy Center filed an amicus brief on behalf of eight child advocacy organizations, arguing that striking down the law would reduce children’s access to affordable health care, particularly those in foster care and suffering serious illnesses.
Five Emory students worked on the brief through a clinic headed by professor Barbara Bennett Woodhouse.
“Cases may come before the Supreme Court that are not obviously about children, but nevertheless have an impact on children’s lives,” Woodhouse said. “Our students scouted the cases looking for one that was flying below the radar screen of child advocacy watchers.”
The health care reforms and ensuing court challenges have hardly flown below the radar at law schools with health law programs, including Saint Louis University School of Law. Between one-quarter and one-third of the students there specialize in health law, said professor Sidney Watson.
“Our students are always pretty engaged in this issue,” she said. “They’ll be reading the transcripts and following the case every day. We’ve had a lot of discussions about the importance of the case as constitutional law doctrine and as health care policy.”
The school offered a course on health care reform as the bill moved through Congress, and has continued to highlight the issue through symposiums and visits by state officials overseeing Medicaid and insurance programs.
“We’ve been reading the circuit court cases, watching videos and having discussions about the arguments,” Watson said. “This is an opportunity for the students to see the case develop.”
Last fall, Orentlicher used the health care reforms as the framework for a seminar and research project. Students examined what the legislation does; how it compares to health care systems in other countries; the related constitutional questions; and its effect on Medicare and Medicaid.
Robert Percival, a professor at University of Maryland Francis King Carey School of Law, is using the reforms as the theme of his constitutional law course this semester. Each year, he chooses an overall theme to provide students with a “real world” case study, he said.
“That’s what’s great about it — it raises so many different issues that you study in constitutional law,” Percival said. “This was a complete gift. I think the students have responded quite enthusiastically.”
In addition to reading the district court and appellate rulings and examining the underlying doctrine, Percival’s students have role-played the part of advocates and defenders of the legislation. “The notion that this is an open question and there’s no clear answer, and that different doctrine cuts different ways, fascinates them,” he said.
Percival has challenged his students to predict how each of the justices will rule. (An early classroom poll showed that two-quarters of them think the law will stand.) The student with the most accurate prediction will win two tickets to a Washington Nationals game.
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