Justice Kennedy may have a point on Obamacare By Mike Natalie Gavel Media Staff As the Obama administration’s health care law hangs in the balance, the Supreme Court is currently re-evaluating its role in American society: justices conservative and liberal are less than eager to increase the political character of the court, and this figures heavily into their recent arguments. Everybody seems to feel that the decision should be made based on constitutionality and not party lines; however, in practice, the lawyers arguing for the benefit of the Court are using constitutional arguments to support their previously held opinions on the bill. Historically, several debates over constitutionality have been resolved based on the Court’s interpretation of the Commerce Clause—which gives Congress the right to legislate over commerce, and use of the Elastic or “necessary and proper” clause, specifically designed to give Congress “wiggle room” when dealing with the multitude of situations that could not have reasonably been foreseen by the Founding Fathers. Different courts “stretch” the elastic clause to different degrees. The Roberts Court seems committed, at least in this instance, to a more conservative interpretation of these powers. Yet, in this case, interpretation of these two aspects of Congressional power may not be sufficient to settle the case: the extent of the Supreme Court’s own power is
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currently being questioned alongside the age-old problem of Congressional limitations. The problem exists in two different dimensions: whether or not the currently problematic “core” of Obamacare—its requirement that all Americans have health insurance—is constitutional, and whether or not the Supreme Court can edit Congress; that’s to say, simply remove the unconstitutional portions of the bill. Much of the discussion, especially recent discussion, has been predicated on the assumption that the central requirement of the Patient Protection and Affordable Care Act are unconstitutional. I do not claim to be an expert, but their progression to such a debate suggests to me the Court’s quiet consensus that, yes; the Court finds certain aspects of the bill unconstitutional. According to the New York Times, Justice Ruth Bader Ginsburg had claimed the “more conservative approach,” i.e. the approach more clearly within the bounds of judicial authority, is to “salvage” what is constitutional in the bill rather than destroy everything. Her colleagues Justice Anthony M. Kennedy and Justice Scalia feel “salvage” is impractical and an overreach of boundaries in its own right. Kennedy argues that changing one aspect of the bill changes its fundamental meaning, that the intent of Congress, the Federal government’s premier legislators, upon signing the bill is of paramount importance and that to change the bill is to presume too much about Congressional intent. Justice Scalia feels the Supreme Court, a nine person judicial body, is just not cut out to review the entire bill.
Personally, I have fairly strong liberal leanings. I will spare you my feelings on Obamacare overall, as you can probably guess them. I will confess, however, that in spite of my own personal desires, Justice Kennedy’s line of reasoning makes more sense to me than Justice Ruth Bader Ginsberg’s. I do not feel it is for the Supreme Court to pick and choose. As important as health care is, our definition of the Supreme Court’s power may well matter more in the long run. You may be thinking that I have got the cart before the horse; that I am presuming much about the future when we have a serious issue at hand here in the present. That I am overly preoccupied with an abstract notion of “balance” between the branches of government, meanwhile Americans across the nation suffer from our flawed system of healthcare. These things have occurred to me, but consider: Congress can readily raise this issue again. They could put the bill back together minus the parts ruled unconstitutional themselves, and pass the law again. I realize that given frequent shifts in the composition of Congress, this is not very likely; however, the fact remains, they can try again. The Supreme Court, however, cannot “try again” as readily. They review existing cases as an appellate court, meaning they have only limited opportunity to reassess their decisions, even those related to the extent of their own authority. In this way, this discussion of judicial authority which has so preoccupied the Supreme Court over the past few days may well be more important than the issue of healthcare.
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