To no one's great surprise the United States Supreme Court has agreed to take up the constitutionality of President Barack Obama's massive overhaul of the nation's healthcare system.
The court has agreed to more than five hours of oral argument over two days, significantly more than it traditionally allots for the cases before it. Those who have looked at the issues involved from both sides say the length of time involved attests to the seriousness of the issues involved. The justices have not only agreed to rule on the constitutionality of the individual mandate but will also consider whether the federal government can expand Medicaid without the consent of the states, whether those bringing suit have standing to sue before the individual mandate goes into effect, and whether or not the whole law can be struck down if parts of it are found to be unconstitutional.
It is indeed a serious set of issues, ones that touch on state power, federalism, individual liberty, and the idea that the powers of the federal government can and should be limited. A major revolution in constitutional law may be in the offing if the justices rule against the Obama administration on any or all of the matters under consideration.
Already there are some constitutional scholars who suggest the court may take what they are calling the easy out, finding that they have no authority to rule on any of the issues at stake until the individual mandate goes into effect in 2014. One of the issues the court will take up involves the Anti-Injunction Act, a federal tax law that holds that standing does not exist until the damage is done. Should the court find the act applies here, it would be forced to rule that a suit could not be brought until someone actually had to pay the penalty imposed under Obamacare on anyone who does not purchase health insurance. Others say that the law only applies to taxes and that the penalty, despite what the Obama administration has already argued in federal court, is not a tax, and, therefore current law does not apply.
The whole business, however, points out the danger of relying on the courts to be the final arbiters of the new healthcare law. The process which produced the new law was political, not legal, and cries out for a political conclusion. Already, 26 states have in some fashion voted that Obamacare and the individual mandate should not apply to them should the Supreme Court let the law stand. Having the court throw out the law would be nice but the real resolution should be found in the halls of Congress, which should act promptly to undo what it has done.
The House, which is now controlled by the GOP, has already done so. The Senate, under the leadership of Obamacare proponent Harry Reid, refuses to even take the matter up. As a result the Democrats will likely lose seats and control of the chamber in the next election. And this is as it should be. Nevertheless, the opponents of Obamacare should continue to push the Congress to act and not default to the judicial branch.