One thing that is very special about the United States is the importance placed in compliance with our Constitution. We have a Constitution that is over two centuries old, and it is agreed that all brabches of our government must abide by it. (By contrast, in the United Kingdom, Parliament is all-powerful. It has been said that the only thing that Parliament cannot do is “make a man a woman, or make a woman a man.”) The constitutionality of laws enacted by Congress and signed into law by the President is always open to challenge before the Supreme Court. And the court began today to take up the so called “Patient Protection and Affordable Care Act” of 2010 — frequently called “Obamacare.” Whatever this court decides, it is certain to be as controversial as Roe v. Wade, and all of us are waiting with bated breath to see what they decide, since there are a substantial number of lower court judges who have made conflicting decisions on the question.
To me, there is no question; the law is clearly unconstitutional. Congress cannot make people buy a private product like health insurance. The argument that states make drivers buy auto insurance is irrelevant — Congress is bound by the strictures of Art. I, Sect. 8 of the Constitution (and a few additional paragraphs in some of the amendments that give Congress the right to enforce those amendments by appropriate legislation), while the States have powers, by virtue of the Tenth Amendment, to do a lot of things that the Federal Government cannot. But some people claim that the commerce clause of Art. I, Sect. 8, or perhaps the taxation clause of the same article, gives Congress the power. And the Supreme Court does not always rule in conformity with the way I would read the Constitution: one recent example is Heller v. District of Columbia, where the Court invalidated D. C.'s gun control laws based on its reading of the Second Amendment. So we have a nervous three months or so to wait before the Court's actual decision comes out. Perhaps, though, people attending these hearings will be able to discern, from the questions the Justices ask the lawyers arguing the case, how they are likely to rule — or more specifically, how Justice Anthony Kennedy is likely to rule, since the others, by their general ways of reasoning, are almost certain to divide 4—4.
It is going to be a long wait.
To me, there is no question; the law is clearly unconstitutional. Congress cannot make people buy a private product like health insurance. The argument that states make drivers buy auto insurance is irrelevant — Congress is bound by the strictures of Art. I, Sect. 8 of the Constitution (and a few additional paragraphs in some of the amendments that give Congress the right to enforce those amendments by appropriate legislation), while the States have powers, by virtue of the Tenth Amendment, to do a lot of things that the Federal Government cannot. But some people claim that the commerce clause of Art. I, Sect. 8, or perhaps the taxation clause of the same article, gives Congress the power. And the Supreme Court does not always rule in conformity with the way I would read the Constitution: one recent example is Heller v. District of Columbia, where the Court invalidated D. C.'s gun control laws based on its reading of the Second Amendment. So we have a nervous three months or so to wait before the Court's actual decision comes out. Perhaps, though, people attending these hearings will be able to discern, from the questions the Justices ask the lawyers arguing the case, how they are likely to rule — or more specifically, how Justice Anthony Kennedy is likely to rule, since the others, by their general ways of reasoning, are almost certain to divide 4—4.
It is going to be a long wait.
