The Pew Research Center recently reported that 52 percent of the American public have a favorable opinion of the United States Supreme Court, down from 64 percent in 2009, and 80 percent in 1994. I don't imagine many people can actually name more than a few of the justices, nor their ideological leanings, or even what the Supreme Court actually does. But this week, all eyes will be on the Court, as they are expected to release one of the most widely awaited rulings in years—on the viability of the 2010 legislation widely known as Obamacare.
I suspect that the reasons for the fall in favorability are tied to the polarization of the Reds and the Blues, and the notion that the Court simply votes on ideology rather than in some principled fashion. If they decide against Obamacare, then the Blues will scream in outrage. The Blue pundits actually are already screaming in anticipation of the ruling. If the court decides to uphold the contested provisions of the law, then the Reds will proclaim the end of constitutional government. Before you go rushing to join the lynch mob of your choice, take the time to understand what the issue is before the court, and how the court actually decides on the cases before it.
On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, more popularly known as Obamacare. The intent of the law was to make health care more widely available to a greater number of people; and to eliminate some insurance company practices that made health insurance coverage more difficult to find for certain groups—such as denying coverage for pre-existing conditions.
It is difficult to argue with these worthy goals. However, when you broaden the coverage, you are necessarily adding huge additional expenses to the system; and so the question becomes how to pay for the additional coverage that insurance companies must offer.
Insurance is a pool of money, intended to be held in reserve in case certain insured risks occur. The idea is that if enough of us pool our money, then when the risks occur and one of us is injured, then we draw from the pool to pay for our claim.
If all of us were in the pool, and rates were set based on the probability of the risk, then there would be sufficient money available to pay claims that routinely occur. One of the biggest problems that needed to be addressed with health care insurance is "free riders"—people who are not in the pool, because either they cannot afford to be, or choose not to purchase health care coverage.
When they are sick or injured, and they show up at the hospital emergency room, the hospital is required to attend to them. With no insurance to pick up the costs, these costs are passed on to all of us in the form of higher prices for services, and higher rates for insurance. We are all subsidizing these costs. If we force all of these people into the pool, and make them pay like the rest of us do, then in theory we have solved the problem: There is now sufficient money in the pool to pay claims.
How do we force people into the pool? We can either tax everyone to subsidize the groups that need to be subsidized; or we can require each person to carry certain minimum insurance coverage, and threaten to fine them if they don't. We push them into the pool.
The first choice, a tax, is politically untenable, and does nothing to control costs; and many fear that it would destroy the private insurance industry and replace it with a government administered one-size fits all insurance market, that does not reduce costs. If everything is "free" then you can eat as much as you want—and this results in more demand for services than supply, leading to rationing of services.
The second choice, pushing them into the pool, is the choice reflected in the Obamacare legislation. The "individual mandate," when it goes into effect, requires each person to carry insurance, and fines them if they do not. The money is paid into the pool, and the pool in theory becomes big enough to pay for all claims.
But finally we get to the nub of the legal case: can the federal government require people to purchase a product? At our constitutional convention in Philadelphia in 1787, the 13 states sent representatives to sit and try to devise a national government of limited powers. The existing Articles of Confederation had been a failure. The national government could not levy taxes; it had to beg the states for money to conduct any of its affairs.
The states were jealous of their powers and their independence, and yet recognized the need for a national government for certain limited purposes. The final product was our Constitution. Article I, Section 8, provided for specific powers that Congress could exercise. To punctuate the fact that the federal government was one of limited powers, a bill of rights was added to the end of the Constitution. The 10th Amendment provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The vast majority of governmental powers have rested with the states. There is no question that a state government can require people to purchase a product—auto insurance, bike helmets, dog collars, health insurance, and anything a state or local municipality wants to require under its "police power".
But Obamacare is the action of the federal government. They can only act if the Constitution authorized them to act in this particular field.
One of the powers specifically granted to Congress was the "Commerce Clause," which provides that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." In the earliest case concerning this power, the Supreme Court ruled invalid New York's attempt to grant a steamboat monopoly to Robert Fulton—finding that the commerce clause "comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with 'commerce with foreign nations, or among the several States.'"
For the next 100 years, the Supreme Court cases on the Commerce Clause found that certain commercial activities such as "production," "manufacturing," and "mining" were within the province of state governments, and thus were beyond the power of Congress under the Commerce Clause.
During the Great Depression in the 1930's, President Franklin Roosevelt introduced various government programs to try to deal with the economic crises at the time. The Supreme Court struck down a host of those laws by a split vote. Roosevelt proposed to expand the Court to up to 15 members—which would have permitted him to appoint six new members and so capture the majority of the court. That bill was defeated, but one justice had an ideological change of heart in a 1937 case upholding a Washington state minimum wage law, and thereafter the Court did not strike down any more New Deal legislation as a violation of the Commerce Clause.
In the 1960's, the Congress passed much Civil Rights legislation, using the commerce clause as its authority, and the Court backed it up to the extreme, ruling in 1969 that Congress could prohibit discrimination in the snack bar of the Lake Nixon Club in Little Rock, Arkansas, that denied membership to blacks. The reasoning? The hot dog and hamburger buns. Their "principal ingredients going into the bread were produced and processed in other States". Commerce between the states. Congress was straining to find a rationale to compel this result, and so the original conception of the Commerce Clause was pushed to its extreme limit. When the only tool in your toolbox is a hammer, every problem becomes a nail. This was the Commerce Clause at its highest water mark, the tool that could be used to force recalcitrant states into line on civil rights legislation.
In those cases, arguably Congress was regulating items and services that were put into the stream of commerce at the initiative of private individuals and businesses. But Congress had never taken the argument to the point where it required people to buy a product. The Obamacare law stands at that gate. The argument is that the free riders affect commerce by not participating in the purchasing end of commerce. Because this inactivity is "commerce," it can be regulated. Part of that regulation can include forcing people to buy a product that arguably they don't want or need.
The problem here is one of outer limits. By that rationale, if you don't buy any product, you affect commerce, and so you can now be forced to buy any product if Congress so chooses. Auto industry in a slump? Everyone must buy a Chrysler. Housing market in a downturn? Everyone must buy a house. Solyndra solar batteries not selling well? Everyone must buy one for their home. Unions in decline? Everyone must buy only union products.
If once you pass through this gate—this reasoning that by not participating in commerce you are affecting commerce, then there are no longer any limits on what Congress can do. And when Congress chooses to act, the individual states are foreclosed from acting in that area—they are pre-empted in that field.
Our Constitution was set up as a check on government power by giving the federal government only certain enumerated powers. But when Congress can do virtually anything on the basis of the Commerce Clause, then we no longer have a government of limited powers, but one of all encompassing powers. The people who love well-meaning government intervention in their lives are willing to live in this brave new world. The people who are distrustful of government power are unwilling to believe this is in their best interests to let this horse out of the barn.
Justice Marshal's staked out the Court's role in 1803, finding that "It is emphatically the province and duty of the judicial department to say what the law is." That is where this case stands today. The case before the Supreme Court is not about whether these nine men and women have a personal opinion about whether Obamacare is a good idea or a bad idea.
They don't judge based on whether it is a good and worthy law that will actually do what it is intended to do, or whether it is a well meaning but poorly executed attempt to control health care costs. The issue is federalism—what are the limits of federal power? They will judge based on whether they believe that Congress has gone right to the edge or beyond it, by pushing the Commerce Clause interpretation to its limits and perhaps past those limits.
We live with a system of constitutional checks and balances. This case has wound its way up to our highest court. They have heard extensive arguments from interested parties. The decision had been made, and the opinions have been written. The decision is expected to be announced this Thursday.
These men and women on the Court have endured enormous scrutiny of their lives and their work prior to being appointed to the Court. They have lifetime appointments, and so don't need to be influenced by how this will play out in their next re-election bid. They have the freedom to do what they think is right, and what they think is best for the country. They are playing the role that they are supposed to play in the system.
Reasonable people can have honest differences in their views. The Court has heard and decided over 75 cases this term, and there are only a handful where they have lined up in the ideological lockstep that is attributed to them. The diversity of thought in the opinions is surprising when you actually look at each case rather than reading the pundits. This case is likely to be a close call.
But even the Court's 5-4 decisions are a sign of a diversity of intellectual views in a functioning democracy. It would be frightening if every Supreme Court case was decided by a 9-0 vote. So when viewing the results in this case, let's let the Court do its job, and then let us as citizens accept that decision without denigrating the people who have the very difficult task of making that decision.
Our system has worked well for over 200 years, because after each case, and each election, the losers and the winner traditionally shake hands, accept the results, and we move forward. We may have different political leanings and ideologies, and different conceptions about the role of government in our lives. But in this age of the 24-hour news cycle, hyper-partisan news outlets, information overload, and a proclivity to jump to conclusions rather than reason your way there, we seem to be losing sight of the fact that we have a system that works well.
It is built on compromise and on accepting the will of the majority, while protecting the rights of the minority. Our system has endured for a long time because our forefathers have played their part as citizens and accepted the results, and moved forward.
If you disagree, you can work for change, you can urge others with the force of your logic, but do so by presenting better ideas, rather than simply berating those with whom you disagree and questioning their motives. Engage in civil discourse.
Do the hard work of being an educated and thoughtful citizen rather than simply chanting with the mob of your choice. Mob rule is the antithesis of democracy. If you feed one you will starve the other. That should be an easy choice for those who value our democratic ideals.
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