Unpicking Obamacare

Which side will win in the end I\’ve no idea but I don\’t think much of the arguments being pout forward by one side:

The 11th Circuit decision, penned by Chief Judge Joel Dubina and Circuit Judge Frank Hull, found that \”the individual mandate contained in the Act exceeds Congress\’s enumerated commerce power.\”

\”What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die,\” the opinion said.

So that\’s the judges agreeing with the essentially conservative case.

Here\’s the liberal side of it:

Circuit Judge Stanley Marcus said in a lengthy dissent that the majority ignored the \”undeniable fact that Congress\’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy.\”

Now, we can be fair about this and characterise it as being one side saying the constitution is the constitution. What it says goes. Or we can take the other side, that it\’s not quite a set of rules but a set of guides, guides which change over time as the society around them changes.

While they don\’t use those words that is one of the major divides in constitutional law in the US.

However, we can be less fair and sum up that second argument as \”heck, Congress already does lots that\’s not quite constitutional under the commerce clause so why not push a bit further?\”

Or to put in en clair, the constitution doesn\’t stop the politicians from robbing the Republic blind, it just slows them down.

14 thoughts on “Unpicking Obamacare”

  1. No. In any common law system, judges interpret law, and the precedent of prior decision by judges on how to interpret law is a crucial part of the constitutional settlement. The literalists are betraying that tradition altogether by discarding the whole concept of precedent.

  2. john b,

    The US constitution is not just a piece of law, it’s a set of rules by which the people of the United States allow a government to operate on their behalf. If any administration don’t want to abide by those rules, then the constitution can be amended:
    However, this is – intentionally- not easy. Since the early part of the 20th century, the left have taken the view that the constitution is a ‘living’ document and is not to be taken literally, while the right have viewed it as meaning what it says.

  3. No, that’s a complete misunderstanding of the nature of the law.

    The Constitution does indeed remain absolute law, unless amended. However, the courts’ interpretation of what the wording of the Constitution actually means – as with any other law – governs how future courts should interpret what the wording of the Constitution actually means. That’s the basis of the legal system.

    If you don’t like that, and would rather judges were told to take into account solely their interpretation of the literal meaning of the original words, rather than be guided by 200 years of precedent, you’re welcome to push for that opinion to become law.

    However, it would mean amending the US Constitution to explictly state that Common Law traditions of precedent in interpreting statute were no longer the basis for the legal system.

  4. john b

    On the contrary, I understand what common law is, but I think you misunderstand what the US constitution is.
    Some of the judiciary may well have taken for themselves the power to ‘interpret’ or ‘re-interpret’ it- a power not granted them by the constitution.
    Some however do not see that as their role, thus the splits that Tim mentions and which quite are a common feature. To my, non-lawyerly reading, the US constitution seems quite unambiguous and I believe it was written by the framers to be so.

  5. Far be it from this blade of grass to argue with the clashing elephants but, as far as I understand these things, the Supreme Court (like ours I believe) is not bound by its own precedents.

    Accordingly, the argument between the strict constructionists and the activists will go on forever. Since Marbury -v- Madison the Supreme Court is the highest and unchallengable interpreter of the constitution. Thus, effectively, the SCOTUS is the supreme part of the tripartite US system of government. Furthermore, any particular supreme court can, effectively, do what it likes in terms of applying its own power to accept or reject precedent or accept or reject a particular piece of legislation.

  6. The question is, is the US to be a Constitutional Republic i.e. is its constitution to be the Constitution? For if not, its muddlin’ along won’t be very different from ours, but theirs will give disproportionate power to unelected judges.

  7. I get it about precedent.

    But it’s also my understanding that what the US Congress has attempted to do in the so-called “individual mandate” is without precedent.

    So how exactly does “precedent” become the issue?

    btw, I’m more worried about disproportionate power in the hands of elected representatives and senators, than I am about disproportionate power in the hands of unelected judges.

  8. john b-The SCOTUS dose give deference to precedent, but it is not taken to be absolute. Otherwise, several fairly horrendous precedents would not have been overturned. Read the entire opinion-the judges are saying this is a “Bridge Too Far”. Many, perhaps a clear majority, of the american populace agree and many, if less so, think this is already several Bridges along a bad road.

  9. Mike – yes, I know this; one of the minors in my BA was US constitutional law. The same’s true in English law regarding precedent. There’s a genuine argument on ‘is this precedent acceptable’.

    However, the picture Tim and Johnathan suggested is simply nonsense. No legal scholars in the US believe “the constitution is the constitution, that’s how it goes” – literalism is solely an ignorant populist movement.

    The debate is over *which* precedents are sufficiently wrong in the light of other aspects of the constitution that they need to be overturned. The courts have never taken this lightly – which is one of the reasons why Plessy v Ferguson stood for so long, and why Brown v Board was so momentous.

  10. Umbongo:

    Actually, the judicial branch is by no means supreme: if there is one branch capable of overriding the others, it’s bound to be the executive: each of their actions, quite unlike those of the other two branches, produces a “fait accompli,” reversible, perhaps, at some time in the future–maybe–but nonetheless, contemporaneously, a “done deal,” a “fact on the ground.”

    Questionably-constitutional “executive orders”
    are routine. But the grandaddy of ’em all was President Jackson. In ordering the Army to remove the Cherokees from their ancestral lands (GA, NC, SC, TN, etc.) on the “Trail of Tears” walk to Oklahoma (after they’d won their case in every court up to and including the Supreme–gov’t. as appellant in every case), he said “The Court has rendered its decision. Now, let them enforce it.”

    For finding not to his liking, President Lincoln
    sent U.S. marshalls to arrest the entire Supreme
    Court (a warning from an administration insider sent them all into hiding just hours before). (In the course of the Civil War, he also imprisoned thousands of newspapermen “for the duration,” without trial or even charges.)

    When push comes to shove, there’s no question as to who has the “muscle” to do both.

  11. In any common law system, judges interpret law, and the precedent of prior decision by judges on how to interpret law is a crucial part of the constitutional settlement.

    I don’t quite see where you are differing from Tim. Yes, precedent is a crucial part of the constitutional settlement. No constitution could cover all real world cases that might arise over the next 100 years fully (for a start, no one writing the constitution could accurately predict all the new technological innovations that would raise over the next 100 years), and all constitutions contain broad principles that the signers agree on, but didn’t have the time to work out in detail because they were too busy arguing over other matters (eg what is “cruel and unusual punishment?” “Oh ye gods, we just came to an agreement on the voting system, and we’re all too exhausted now”), so precedent is important as part of understanding what the constitution means.

    But it’s one thing to look to precedent to say define what is unreasonable search and seizure when it comes to tapping telegraph wires, or cruel and unusual punishment when it comes to cutting off people’s hands for thieving. It’s another thing to say “well, precedent indicates that ‘Congress’ commerce power has grown exponentially over the past two centuries’ and so it should keep growing regardless of what the Constitution says.”

  12. Gene Berman

    Of course the executive branch can produce a “fait accompli”. After all that’s what “executive” means in this context. However, as the ultimate decider of what is lawful or not lawful, the SCOTUS can rule that any particular action of Congress or the President is illegal: hence it can stop (in law if not in reality) any act of Congress or the executive or direct either to carry out what it determines as the law.

    Sure Jackson’s actions re the Cherokees was both effective and permanent, but legal? I don’t think so. I’m not seeking a discussion on realpolitik but on the constitution of the US: in that constitution I would maintain that the supreme element of the tripartite system is, in law, the Supreme Court since it alone can determine what can be legally done.

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