Sunday, April 01, 2012

The Health Care Hearings in SCOTUS

During the week that the Supreme Court considered Obamacare there has been an increasing band of supposed liberals arguing for restraint.   For example, on March 27 the NYT intoned "In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress."   They go on to claim that the Court should not reject "established constitutional principles that have been upheld for generations."    They then go on to state that "Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers."  (emphasis added)    Indeed, in Article 1, Section 8 Congress is granted the authority "To regulate Commerce with foreign Nations, and among the several States" - but for anyone who has read the entire document that power is not absolute.   Could Congress have adopted a government run health program? Of course, but the body politic would not have accepted such an intrusion into the markets.   The question before the Supreme Court is not dealing with whether Congress has power to regulate markets, but whether it has absolute authority.

In an article in the Sacramento Bee today, they quote two law professors, supposedly conservative (one Charles Freid a former Solicitor General) who say the court should not overturn the bill.   Both claim that SCOTUS should not not intrude on decades of precedent because it has not over-turned laws relating to commerce for decades.   That is an odd understanding of the powers of the Supreme Court. One should mention that both Freid and Douglas Kmeic (who makes the same argument) endorsed Obama in 2008.

The Bee also had an article this morning which among other things mentions a mandate (that they claim upholds the Obama mandate for purchase of health insurance) which says hospitals must offer uncompensated care to indigents.   That mandate is tied to the acceptance of federal funds, a much different issue.  One could also make the argument that the prior mandate should have been over-turned.  It certainly has contributed to many of the problems in the way Americans spend for healthcare.

There were four items of interest in the case for me (besides the eventual outcome).   First, the current Solicitor General was not up to his job - as one conservative wag commented Donald Verrilli may not have been able to "defend the indefensible."  Paul Clement, for the other side, seemed quite good. Second, I am bothered that former Harvard Dean and current member of the court (and former Obama Solicitor General) Elena Kagan did recuse herself from this issue.   That would have been proper.  It is clear in her prior administration role that she participated in beginning to build the defense of this law and by any standard of judicial ethics she cannot judge this law impartially.   Third,  what interested me most about this case was the high level of interest that it generated among average citizens.  I am not sure if the SCOTUS site had a counter on the number of downloads of the tapes - but I bet between those and the talk and writing - this is the most transparent I think I have seen a major court action.  Finally there was a lot of tut-tutting about Justice Scalia's comment about having to read the length of the bill.  Scalia's point was not about the need to slog through this monstrosity but whether any 2700 page bill can pass the test of reasonableness.

In the end, we must now wait to see how the justices sort out the issues.  Some speculated that if Justice Kennedy voted to uphold the statute that the Chief Justice might well vote with him (making a 6-3 decision).   From listening to the questioning, it is pretty clear that the four liberal justices will not deliberate on the merits of the issue and that they will vote to uphold.   It is also pretty clear that at least three of the conservatives will vote to declare the law unconstitutional.   From my perspective, I hope that at least five justices can vote against this bill.  Health care is an important issue which deserves more careful consideration than was given in the "Affordable" Care Act.

Law Professor and Instapundit author Glenn Reynolds concluded "Seems to me they should just knock down the whole thing and let Congress do whatever it wants next. If that turns out to be inconvenient, well, there’s a good reason not to pass unconstitutional legislation, isn’t it?"

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