“But the great security against a gradual concentration of the several powers in the same department, consists in giving those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.”– Publius, The Federalist No. 51
It is hard to remember an issue in our federal government that did not feed the beast of divisiveness. We seldom hear the media cover a topic in politics where the hot button words of -right and left, red state and blue state, conservative and liberal- are not used ad nauseam. While this writer has no stomach for politicians and pundits’ phony pleas for civility that once (but actually never) existed in American politics, I would like to see an issue in which people of both political spectrums come together to form an agreement over policy and implementation. There is a chance, however slim, we may see such a miracle in the Supreme Court’s ruling on the case of Florida, et al., Petitioners v Department of Health and Human Services, et al. This of course, is the case concerning the legality of Obamacare.
In writing this essay I must proceed cautiously. First, there is no guarantee the law will be overturned, no less parts of the law such as the individual mandate, which has come under the most scrutiny of the court in the three hearings this week. The Court overturning the law or just the individual mandate will be a victory for the conservative cause, but if it is done through a 5-4 majority along party lines, it will create an even more unstable situation for our currently frail country as it enters the heated presidential election season.
The Justices of the Supreme Court are selected by the President when a seat on the Bench becomes available by the retirement of a sitting justice. While there is no real “party line” for justices, each justice is usually selected by a President who shares the same ideals towards the Constitution and its role in the rule of law in the United States. Conservatives like President George Bush choose men like Samuel Alito and John Roberts, judges who view the Constitution as a document that leaves little room for interpretation, no less imagination. Federalism, the separation created by the Constitution in the power delegated to Federal and State governments, is usually a significant matter these justices apply to law when judging the overreach of the federal government. President Obama and liberal presidents select justices like Sonya Sotomayor, whose interpretation of the Constitution is that of a “living document”; a school of thought that took hold at the turn of the 20th century by the Progressives of that era such as Oliver Wendell Holmes. Justice Sotomayor and others of her ilk feel the Constitution is up for interpretation (most notably in this case the Commerce Clause in Article I, Section 3) and that of her own “life experiences” will provide a base to make more informed opinions on specific cases. This ideology appears to stand in opposition of the traditional blindfold donned by Lady Justice in all legal disputes, regardless of circumstance and mitigating factors such as race and sex. Through these two approaches, we see the ideological lines drawn in the Highest Court in the Land.
Our nine justices and their political tilt is obviously a serious issue in the decision of the case. The central argument which has taken precedent over other issues regarding this massive law- a cruel and absurd 2,700 pages as noted by Justice Scalia– is the subject of the individual mandate: the all binding rule in Obamacare that the law is built upon. The expected and predictable outcome of this law is that it will move the country closer to a single payer healthcare system, where healthcare coverage is subsidized by the federal government to the point that prices will drive employers to drop their existing plans and force insurers to go out of business. This will ultimately leave the all-knowing and all mighty United States government to provide affordable and outstanding healthcare for 300 million people and counting. As a result, healthcare for individuals in the United States will ultimately be subsidized by other citizens’ money. The higher costs, usually applying to the older and sicker, will be supported by the younger and healthier. And in order to keep this house of cards sturdy, at least until the debt crisis brings it all down, it is unsustainable unless all citizens are forced to partake in the system. The Obama administration now realizes how ridiculous this sounds once said out loud in a courtroom, as Solicitor General Donald Verrilli argues that no one will be forced to buy healthcare insurance, but will have to pay a fine if they refuse to do so. Leveling a fine against someone if he doesn’t do what you want him to do is a way of forcing him to do it in my mind. And considering the way these arguments have gone over the last three days, it sounds the same to the justices as well.
I won’t rehash the skewering objections made by the conservative (as well as liberal) justices regarding the individual mandate as they have already been replayed throughout the week by the media – although my favorite is Justice Scalia questioning if the government can regulate the food market and force people to buy broccoli. My concern for this space is over the final decision and the number of supporters. The issue of Obamacare enveloped the country for the better part of a year, and though 2009-2010 would have been better spent by the Obama administration and a Democratic legislature crafting plans to fight the recession and the debt, it is an issue that can define the relationship between government and citizen for years to come. The image of a partial or entire rejection of the law by a 5-4 majority, where conservative justices outvote the designated liberal justices, will paint the picture of disunity referred to above.
In December 2000, the Supreme Court issued a ruling almost as important as this one. As the nation waited for a new President for over a month, the Court decided the Florida Presidential election re-count had gone on long passed the legal time period set by Florida’s constitution, awarding Governor Bush Florida’s 25 electoral votes and the Presidency as a result. Though the majority ruling was based on the law as it was written in the Florida constitution, it was a 5-4 vote split along “party lines.” This kind of decision, where the majority bases their ruling on the existing law and the dissenters allowed their politics to play a role, is the exact opposite of what the Framer’s intended in granting Justices lifetime appointments. Lifetime appointments for justices was a provision in the Constitution to shield them from the influence of power that may have nominated them to the bench in the first place. The decision over Bush v. Gore set a tone of divisiveness for the coming decade, kicking Mr. Bush’s presidency off with the unmitigated hatred of the opposing party, something Democrats had forgotten about when President Obama was shown the same courtesy in 2008. And now, we are again at an impasse.
The Patient Protection and Affordable Care Act, while ambitious, is a frightfully bad law given the circumstances our country faces, most notably overwhelming debt as a result of unsustainable entitlement protections. It was barely passed in Congress, reaching the maximum Democratic support and garnering barely any from Republicans . If overturned, I only hope our Justices can come to an agreement in which constitutionally speaking, the government has no right to force people to purchase health insurance. Once that is established by an encouraging and significant margin in the decision, we can move on to how the law needs to be broken down as to what is kept and what is not, barring the law is not overturned in its entirety. But the Mandate is the ballgame. If that is permitted to exist as written, then Federalism as we know it is no more. Hopefully our Justices can see beyond their own political loyalties and vote on the legality of the law and nothing else. If not, a 5-4 split will leave us entering the November elections no less healed than were are now, than we were in 2008 and even 2000. Perhaps a court so often split down the middle can exemplify the unity this country desperately needs.
– John P. Burns