This week, the United States Supreme Court is hearing arguments about whether the 2010 Patient Protection and Affordable Care Act is constitutional. Republicans call it “Obamacare” and claim that it reforms health care. It does no such thing. PPACA does not change the way doctors treat patients. It changes the way we pay for health care.
Several groups, including the state of Florida, filed suit in federal district court claiming that PPACA’s individual mandate provision – requiring all Americans to have health insurance – is unconstitutional. The government argues that the Constitution does permit the mandate. Despite Republican lies, government actions can be constitutional without being specifically listed in the Constitution.
The American flag, national anthem, political parties, Congressional Medal of Honor, Air Force, national parks and highway system, and cabinet departments are not in the Constitution. They are all constitutional. And the Republicans know it.
President Obama’s administration based its case for PPACA on the “commerce clause” in the Constitution, which gives Congress the power to regulate interstate commerce. That was a mistake. PPACA opponents are right. That power does not include mandates like this. However, the commerce clause does not authorize PPACA. The elastic clause does. The elastic clause states that Congress has the duty to provide for the nation’s general welfare and the authority to make all necessary laws to implement that duty. Ensuring that all Americans have access to health care is providing for the general welfare. So the government is right in principle, but will probably lose in court because it’s relying on the wrong argument to support its case.
The Supreme Court is very powerful, but few Americans understand how it works. Our schools don’t teach this stuff because they don’t want you to know it.
The Court opens its annual session on the first Monday in October each year. The session officially ends a year later, but the justices usually conclude their work in late June or early July. Article III of the U.S. Constitution creates the Supreme Court and describes its structure and function. The Constitution is vague on the Court’s powers and duties, but legislation and legal precedent have clarified those issues over the years. The Court generally hears constitutional questions and appeals of cases from the lower federal courts. It serves as the original trial court for all cases in which a state is a party and those involving ambassadors and cabinet secretaries.
Despite what most people believe, the Constitution does not give the Court the power to decide whether a law or an action is constitutional. The Court decided that for itself.
The Court established its power of judicial review in 1803 when it decided that the duty to uphold the Constitution gave the Court a responsibility to overturn unconstitutional laws. Chief Justice John Marshall said, “It is emphatically the province of the judicial department to say what the law is.”
The Constitution does not specify the number of Supreme Court justices; the elastic clause gives Congress that power. Congress set that number at nine in 1869. One chief justice and eight associate justices comprise the court. Justices serve for life, or until they retire, and the president nominates new justices to fill vacancies. The president also names the chief justice. The Senate must confirm the nominations before the justices can begin their jobs. The current Supreme Court members are: Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsberg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan.
President Obama has appointed two justices – Sotomayor and Kagan – to the court. Americans watched a rare process in the summers of 2009 and 2010 as the Senate Judiciary Committee investigated their qualifications and the full Senate debated and then confirmed those appointments.
The Court heard 1,460 cases in 1945 and 2,313 in 1960. The current caseload is more than 10,000 cases per year. The Court grants a formal request, called a Writ of Certiorari, before it considers a case. Attorneys for the parties file briefs with the court, stating the legal arguments supporting their positions. Then the Court hears oral arguments, in which the attorneys provide additional information in person and answer the justices’ questions about the case. That’s where we are now.
After the arguments end, the justices meet in private to debate the issues and the merits and then vote on the Court’s decision. It can take several months before the Court announces its decision. One or more justices can write opinions on the decision, explaining their reasoning. A majority opinion explains the reasoning behind the final decision. A concurring opinion agrees with the majority decision, but for different reasons. A dissenting opinion explains why its author disagrees with the Court’s decision.
Most Supreme Court cases only affect the parties directly involved, but some have directly affected your life.
In 1954, the Court declared racial segregation unconstitutional and ordered public schools to integrate “with all deliberate speed”. This opened the door to further cases, which abolished legal racial segregation in all areas of public life.
In 1963, the court ruled that the government must provide attorneys in all criminal cases when the defendants cannot afford them. State and local governments created of Public Defenders offices throughout the country. Now, if you’re arrested, “you have the right to an attorney.”
In 1966, the Court began requiring the police to inform arrested people of their rights, which already exist under the Constitution, before questioning. The statement that the police read to arrested suspects is called the “Miranda Warning”. This was not made up for TV cop shows. The police really do have to read your rights to you if they arrest you.
In 1972, the Court decided that women have the right to obtain abortions.
In 2010, the Court ruled that, in the political arena, money equals speech and that corporations are entitled to spend as much “speech” as they like in order to influence electons.
When our schools bother to teach civics at all, they stress the Constitution’s checks and balances. In this case, that means that we can overturn or change a Supreme Court decisions with which we disagree. However, it is a long and difficult process. The Court can overturn its own previous decision when a similar case reaches its docket. That happens rarely. Depending on the details, Congress may be able to enact new laws to correct a situation, or the nation can amend the Constitution. A constitutional amendment requires about ten years of serious community organizing and can cost as much as a billion dollars.
There’s a lot at stake this week. It’s a shame that the government attorneys are making the wrong argument.
For More Information
Patient Protection and Affordable Care Act
U.S. Supreme Court
Supreme Court Rules of Procedure
Marbury v. Madison
United States Court System
Constitutional Amendment Process
US Department of Health and Human Services vs. Florida, et al: Docket Record
A Guide to the Supreme Court’s Review of the 2010 Health Care Reform Law