The Court In Action

                                                                                                 

It's hard for me to determine if the Constitution is the best form of government possible, but it's what we have. I don't presume to be the best interpreter of it. That's not my area of expertise. I'm neither a historian nor a Constitutional scholar.

I can't comment on the validity of the Affordable Health Care Act that was given the green light by the Supreme Court. It's legal. They said so, and since they claimed the prerogative to make such decisions in Marbury v. Madison I have no standing to do question it. I'm not a lawyer and it's not my area of expertise.

But is it better to be healthy or sick? I can offer an informed opinion on that. I'm a doctor so I have the expertise. Even if I weren't, I suspect that I'd opt for good health if given the choice.

But I don't think that is the issue. Congress passed a statute that provided, under the Constitution's Commerce Clause, that everyone would be required to have health insurance or pay a penalty. It would not be a tax. Raising taxes is a dicey political issue and Congress made great efforts to avoid that pitfall.

Not only that, but when arguing for the validity of that law, the Executive Branch of our government emphasized the fact that this was not a tax and that its sanction lay within the Commerce Clause.

The Supreme Court, however, rejected that argument declaring that while it was not Constitutionally valid under that clause, it could still pass muster as a tax, since Congress had the right to pass such a levy.

The President declared victory since the Court left the Act standing, but he stated flatly that it was a penalty, not a tax. He denied the underpinning of the Supreme Court opinion while accepting the decision itself. He denied the appellation of a tax, which is toxic at any time, but even moreso in an election year.

Whether Congress has the power to assess a tax on those without insurance is not the subject of the debate. Clearly Congress did not want to do so. And the Executive didn't want to defend the statute on that basis. And that is a perfectly valid point of view and action, but the Supreme Court wasn't prepared to accept the will of Congress and the view of the President. The Court, which had assumed the responsibility of deciding what the law was, preferred to declare and legitimize what the Justices thought it should be.

One of the main concerns of many Americans is about what they consider “judicial overreach.” There is a view that the courts have usurped legislative power and made decisions regarding legislation based upon their views of societal needs rather than Congress's. Even without training in Constitutional Law, I doubt that this was the intent of the Founding Fathers.

This decision cannot be seen in any other light. Although the Court rejected the wishes both of Congress and the President, the majority found a way to approve the Act. Referring to a power of Congress which it had chosen to reject, the Court allowed the new law to remaining force even as the President rejected the Court's reasoning. The Court had based its view on a right that Congress had not claimed, because it existed – even if Madison meant something different when he wrote it. The majority found a way to achieve the desired goal of universal health care in spite of the other branches of government. It legislated what Congress had not wanted.

It is hard to argue against health and for the denial of care to everyone, but it is also unreasonable to insist that the State knows better than the citizens who created it. If the courts can justify whatever they consider appropriate, whether or not Congress wants to do so, there is no longer any real balance of powers – no checks and balances. The Court claims the right to decide on Constitutionality, but as such, its mandate is to judge the laws that have been passed, not to find a way to pass their own laws and then find them Constitutional. At that point, Congress, and the Executive, which is charged with the responsibility of enforcing the will of Congress, become irrelevant. If Congress acts in a way that the courts find to be wrong, but the goal is one of which the court approves, the judiciary can write its own law, irrespective of the wishes of Congress.

Our health is critical, but so is the health of our country. And it's our country and our Constitution that are the real victims of the Court's therapy.