Tuesday, March 27, 2012

The Pete Morin Editorial Review 2012-4

ObamaCare & judicial review

The United States Supreme Court began hearings yesterday on the constitutionality of the Patient Protection and Affordability Care act, a.k.a. ObamaCare.

The first day consisted of listening to lawyers(now there's a dreadful thought) drone on about the 1867 anti-injunction law concerning taxing power etc., etc. I don't get a lot of it, but the basic argument is you can't hear a plaintiff's case if the law hasn't affected them yet. Since no one would be fined by not having health insurance until at least 2014, then the law can't be challenged until that time. Apparently, the Justices, including Kagan & Breyer, both considered liberal in their views, are having none of it and are willing to have the case proceed.

The real meat of the argument comes today when the mandate to purchase insurance is presented before the court. The Government will offer the opinion that a mandate is constitutional under the right of the legislature to regulate interstate commerce. The government claims that by not purchasing health insurance a burden would be placed on all other individuals in society to pay for individuals who do not have insurance. Costs would be borne by those who have insurance spread across the entire country, thereby affecting commerce. The plaintiffs(those suing to negate the law) argue that the legislature cannot compel individuals to take part in commerce. In other words, the government is compelling individuals to purchase a product whether they want to or not.

If the government wins, then ObamaCare remains intact. If the plaintiffs prevail, in whole, or in part, then ObamaCare will either be re-written or scrapped.

The more interesting point to be considered is what happens to the ability of the Supreme Court to enact judicial review should ObamaCare prevail.

Judicial review was first employed in the Supreme Court case of Marbury v Madison in 1803. What made this case revolutionary was the fact that the Constitution does not mention judicial review as a legitimate function of the Supreme Court. Chief Justice John Marshall was able to use this tactic through some skillful wording and political gamesmanship. After all, if the Court says something can be reviewed can Congress overrule the Court? It might be possible, but Congress has never attempted to do so.

In any event, if the Court upholds ObamaCare, and individuals will be forced to take part in commerce, then what is to stop the Congress from forcing people to purchase a certain vehicle, or purchase a certain kind of house, or, to purchase ANYTHING that Congress deems necessary that applies to a proper regulation of commerce? The logical extension of this thinking is that contesting these laws would no longer be possible. In essence, the United States Supreme Court, with respect to any question regarding commerce, would be out of a job. Judicial review, for all intents and purposes, would be dead.

Interesting question, n'est pas?

The answer as to whether we become wards of the state will be answered in June, when the Court renders its decision. Our basic freedoms as citizens will either stand or fall. Good luck, America.

1 comment:

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