Healthcare and the Constitution

It seems that Barack Obama's healthcare bill has had some problems in the courts. Many of them have had trouble with the provision that requires people to buy health insurance. They argue that this exceeded the authority granted to congress by the constitution.

I think this is likely to go to the supreme court. I don't think they will approve of the individual mandate, which is the controversial provision. They will probably either find some way to disentangle this provision from the other parts of the legislation or throw the whole thing out.

What I think people who support this type of health reform should be concerned about is that congress apparently didn't include a severability clause. This is a provision that enables the parts of the act that the courts approve of to remain in place even if other parts are found invalid or unconstitutional. Since legislation of this type almost always has this feature, it seems that this omission is glaring. What were they thinking? Was this intentional or was it a huge oversight?

The opinion expressed over at the Cato Institute is that this was due to arrogance. They just don't care about the constitution, so they omitted all of the usual steps of trying to predict how the courts would likely react to the legislation. That doesn't seem like a very charitable opinion about congress, but I'm at a loss as to how to come up with an alternative explanation.

I don't like the way this is going. The way I see this playing out is that the supreme court will overturn the whole bill by a 5-4 decision splitting in the predictable manner. Scalia, Thomas, Roberts, Alito and Kennedy will join the decision against the bill. Breyer, Sota-Mayor, Kagen and Bader-Ginsberg will dissent and all join an opinion in support of the bill. Large numbers of people will protest in the street that this is just Bush v. Gore all over again and the courts are just making partisan decisions.

In order for us to have a peaceful, stable society people must place a higher priority on the process by which decisions are made than the outcome, which is something that we cannot agree on. We have votes and do politics in order to reach decisions where consensus isn't possible. Judges are appointed by the legislature according to a process that is very conservative, not in the sense of being right wing but in the sense of not being prone to rapid ideological swings. Conservative supreme court justices are likely to be replaced by conservatives and likewise with the liberals.

We need to tone down the rhetoric. Too many politicians go to Washington to “fight”. What supporters of health reform need to do is sit down and try to come up with legislation that a majority in congress will approve, that will survive a filibuster in the Senate and that the courts will find passes constitutional muster. Unfortunately for them, their position in government has deteriorated since the legislation was passed. The democrats have lost control over the House. In the next election they are likely to lose the Senate as well, so it seems that their position is unlikely to improve in the near future.

What is working against them is large numbers of Republicans in the house who are ideologically committed to blocking any type of health reform that liberals are likely to want. This is the way that democracy is supposed to work. Lots of people have ideologies and they go to Washington to try to get the legislation that congress passes to more closely conform to their ideals. What we need to keep in mind is that it is better to resolve our differences by voting than by having a fight in the streets.