For those keeping score, President Obama’s health-care-reform law has a solid 2-2 record in federal courts. While, according to Justice Ginsburg, the Supreme Court is not likely to hear Constitutional challenges to the law anytime soon, Supreme Court watchers are having a jolly good time prognosticating how they believe the Court will rule. Two interesting predictions came out this week:
– Newsweek predicts that the Court’s decision will ultimately come down to which argument Justice Kennedy (the ultimate swing-vote) will find most persuasive. The individual mandate was a policy that Democrats adopted precisely in order to attract moderate Republicans like, well, Justice Kennedy. It would therefore be quite ironic if Kennedy was the key vote in striking the law down, which could then force the Democrats to once more contemplate big-government solutions, which conservatives had spent so long trying to persuade Democrats to give up.
– Meanwhile, Harvard Law School Professor Laurence H. Tribe writes in a NY Times editorial that the inevitable Supreme Court decision on the constitutionality of the health care law will be a slam dunk for liberals and progressives. He writes:
“Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?”
As the health-care-reform bill makes it way to the Supreme Court, this will certainly be a fun race to watch.
Here is the take on this from Slate.com
They agree with Newsweek. I don’t think it’s much of a stretch to say that this comes down to Kennedy.
While the Supreme Court should agree that Congress has the authority to regulate the Health Care Industry; it does not have the authority to regulate individual liberties – and therefore tell a citizen what they must purchase.
If Congress really wanted to regulate commerce, they would remove employers from the equation and regulate the industry by forcing individual coverage decisions the same as auto or home insurance.
Moreover, if the President and Congress really wanted to solve the problem they would address actual health care costs – not just the manner in which those costs get paid.
Since “we the people” ratified the Constitution and the limited gov’t it created, it is the people–and most certainly NOT the courts–who are the final abiters of what is and is not constitutional. A tribunal of black-robed, unelected jurists who rely on “judicial supremacy” over “constitutional supremacy” can no longer be relied upon to provide sober, constitution-first judicial review. And that is painfully obvious to all but the ideologically myopic. Right now, I’d say the people and the states which represent them view the individual mandate as manifestly unconstitutional. Should the “supreme” court, in its infinite capacity for revisionist rulings, find in favor of the individual mandate,it should be, and most likely will be, nullified/voided by many states. The political tumult and divisiveness Obamacare, et. al. progressive federal overreach have perpetrated on the United States is nothing short of irresponsible and dangerous. We are at a critical juncture in our history. I pray common sense and constitutionalism reign supreme, failing which I fear the union itself may well be doomed. Union at any price is foolhardy and shortsighted. Union under tyranny is absolutely unredeeming.
“This will certainly be a fun race to watch.” ?????????????????????????????
Wow! A twisted sense of what is fun and entertaining, I must say.
I agree with jdelaney3 above. Why allow the fate of the nation to rely on one unaccountable judge on the supreme court. Nonsensical and an open invitation to federal overreach.
We so accustomed to obsequiously rolling over and obey what comes out of DC, we’ve lost sight of our inherent power to tell the feds to lay off. Time we said NO WAY, NO HOW, NO MORE!
Interesting take on the perceived illegitimacy of the Supreme Court from jdelaney3. I think we should first note that perception about the distance the Court has from the American public aside, it is the Constitution-that glorious document ratified by we the people that creates our government of enumerated (not necessarily “limited”) powers-it is the Constitution, that sets the Supreme Court up as the final arbiter of what is constitutional and what is not (see U.S. Const., Art. III; Marbury v. Madison, 1 Cranch 137 (1803)).
The people, however, do have a way of overriding the Court and that is through constitutional amendment. It is my opinion that the Congress is unlikely to amend the Constitution given the limited (indeed, gnat-like) attention span that the 24 hour news cycle and 365 days/year election cycle has induced. Now, what would be truly interesting would be to convene constitutional conventions to propose an amendment to the Constitution prohibiting healthcare. I think this is unlikely to succeed for two reasons 1) Americans don’t actually care enough to spend their time debating amendments 2) Health care is NOT radically unpopular despite the best efforts of Fox News.
The fantastic thing about our democracy is that our Constitution has established structures for peacefully determining what our laws should be, it is my humble suggestion that we follow them.
Peaceful remedies at any price is a failed and shortsighted stance.
In fact, the Supreme Court was never intended by the framers to wield the authority it now so freely asserts.
None other than Thomas Jefferson warned that the court was evolving into an unchecked “judicial oligarchy” and strongly urged an amendment which would more effectively reign in the court. As for Marbury vs Madison, Jefferson is quoted as having said “I have long wished for a proper aoccasion to have the gratuitous opinion in Marbury vs Madsion brought before the pulic, and denounced as not law.” He dubbed “judicial review” as a “dangerous doctrine”. He went on to say that “Iknow of o safe depsoitory of the ultimate powers of the society but the people themselves…as [they] are the true corrective of abuses of Constitutional power.”
The court’s more contemporary shift from “constitutional supremacy” to “judicial supremacy” would be anathema to the framers.
Finally, to peacefull and effectually check federal encroachment on state powers, Jefferson asserted that nullification is the “rightful remedey”, and James Madison was in agreement. Nullification is peaceful. Secession may not be.
A “modest proposal” : Whereas the U.S. is the only developed country not to provide some form of universal health care, and whereas a workable universal health care system virtually demands that all who do, or plan to, participate must share costs. Therefore, such person or persons who do not wish to, and decline to, buy insurance thus declare in writing, certified by certified notary public and filed with the court, themselves (and their families, where that applies) ineligible without exception or recourse forever after to be examined by medical professionals or treated at public expense whether on the street, in emergency rooms or facilities, or other medical facilities receiving partial or total reimbursement for services. If said person or persons suffer emotional or physical pain, even unto death, such situations and conditions are not admissible for treatment or alleviation using the resources provided by a universal health care system. Neither shall any private insurer be obligated to issue health insurance coverage when there are pre-existing conditions, related either to themselves individually or to members of their family. Such persons, by declining to participate in universal health care system have, from that moment forward, voided their rights.