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2012 William Howard Taft Lecture on Constitutional Law


*This event, scheduled for Tuesday, October 30, has been postponed due to inclement weather on the East Coast.

New Date: Wednesday, November 14, 2012
12:15 - 1:15 p.m.
College of Law - Room 114

Webcast: 2012 Taft Lecture

Steven G. Calabresi
Class of 1940 Professor of Law, Northwestern University School of Law

"The Right to Buy Health Insurance Across State Lines: Crony Capitalism and the Supreme Court"

My lecture will focus on the health care reform debate in the wake of the Supreme Court's historic decision this past June in NFIB v. Sebelius upholding the mandate to buy health insurance under the Affordable Care Act as a tax. I will argue that citizens have and should have a constitutional right to be able to purchase any health insurance plan that is offered in any of the fifty states even if a citizens' own state has not given an out of state insurer permission to do business within a state. The present licensing system has led to the creation of 50 separate health insurance monopolies or oligopolies in each of the 50 states. This is unconstitutional because it deprives consumers of choices they should have in buying health insurance, it drives up the cost of health care, and it leads to lower quality health insurance because of the absence of competition.

I will argue that 1) the Commerce Clause applies to the buying and selling of health insurance; 2) that the Dormant Commerce Clause, absent the McCarran-Ferguson Act, would and should make it unconstitutional for states to discriminate against out of state health insurance providers; 3) that the Constitution should no longer be read as giving Congress the power to override the Dormant Commerce Clause in the health insurance context because the mandate now compels consumers to buy health insurance; 4) that Congress lacks the direct power under the Commerce Clause to create 50 separate health insurance monopolies and oligopolies in each of the 50 states; and 5) that the McCarran-Ferguson Act violates the Privileges and Immunities Clause of Article IV, Section 2.

My conclusion is that the passage of the Affordable Care Act and the upholding of the mandate to buy health insurance renders the McCarran-Ferguson Act unconstitutional as it applies to the market for health insurance.

About the Taft Lecture

The William Howard Taft Lecture on Constitutional Law was established in 1986 to honor the contributions of the only person to have served as both President (1909-1913) and Chief Justice (1921-1930) of the United States.

William Howard Taft was born in Cincinnati on Auburn Avenue in 1857. He is a graduate of the Cincinnati Law School, the predecessor of the University of Cincinnati College of Law. He served as Dean of the newly founded University of Cincinnati Law Department from 1896-1900 and was instrumental in the merger of this department and his alma mater in 1897.