Wednesday, December 23, 2009

I Am Not Alone

I raised the question a couple of days ago regarding whether the pending healthcare reform bill is Constitutional. This morning Fox News online is running an unscientific poll which asks that very question of readers:

Is the Healthcare Bill Compliant? You Decide.

When I checked at the link, the current vote has 97% of participants saying that they believe the bill violates the Constitution. That isn't even close! But what surprises me is that the question as Fox asks only considers two aspects:

  1. Can Congress mandate a purchase by all citizens of a commodity or product from private providers?
  2. Can Congress impose unequal requirements on individual states while imposing tax burdens on all citizens equally?

Clearly those are significant issues. But one more glitch appears in my view. The Senate proposal slams the door on attempts to correct this debacle by future legislatures. That provision is possibly the most unconstitutional of all.

For a legislature today to impose a limitation on the powers granted by the Constitution to the legislative branch is well beyond their authority. Such a change to the fundamental powers enumerated in the basic document could only be done by amendment.

Let us note, however, several important considerations in this. The fact that a self-selection online poll says 97% of participants think something is interesting but irrelevant in the final outcome.

The more important factor is the need to understand how and when the Supreme Court gets involved in questions of constitutionality. Of major democracies, the only one which possesses authority to preview proposals of law and render judgments on compliance with the nation's constitution on request is France under the document adopted when Charles Degaulle over-hauled the republic. Our Supreme Court is restrained to only rule on existing and completed actions of the other branches. Only after the law is enacted will there be a possibility of review.

That review is not mandated or guaranteed either. It would come only as a result of action in a federal court brought by a citizen with standing to bring suit on the question. Then the Supreme Court is not required to accept the case but would only do so with concurrence of four of the nine justices; the Rule of Four.

Given the sweeping nature of the law as well as the clear disconnect of the current Congress from the preferences of the majority, it seems a certainty that a suit would be brought. Then, with the current composition of the Roberts court it also seems certain that certiorari would be granted and action would be taken fairly expeditiously.

At that point, however, I would have to predict a divided court and a number of opinions written both concurring and dissenting. It will all take time and you can bet you'll never get those tax dollars back regardless of how it is resolved.

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