Congress May Have Final Say on Health Care Law

By Richard Douglas

The Supreme Court is hearing one of its most important cases in decades as it reviews the insurance mandate created in President Obama's controversial health care statute.  Many Americans hope the court overturns the mandate, while Maryland, on the other hand, filed a friend-of-the court brief urging that the law is upheld.

I am not sure the law will be overturned despite the encouraging line of questioning from Justice Anthony Kennedy, a swing vote on the court.  Kennedy described the individual mandate as fundamentally changing our relationship with the government.   But we must look deeper than the oral arguments of these last three days in order to assess the law's fate.  I am not yet persuaded the Supreme Court will overturn President Obama's health care law.   That is based on how the Supreme Court operates and not a political view.  Here are some thoughts on how events may unfold at the high court:

The Constitution’s Interstate Commerce Clause says Congress has the
power to regulate commerce between the states.  In the lower courts,
President Obama cited Congress’s Commerce Clause power as at least
partial authority for the Obama insurance mandate.

Over the decades, the US Supreme Court (including Marylander Robert
Brooke Taney, of Dred Scott decision infamy) has given Congress
significant leeway to regulate interstate commerce under the
Constitution's Commerce Clause.  Therefore, for Obamacare, the central
question for the US Supreme Court to resolve is likely to be whether
Obamacare was a proper exercise by Congress of its broad Commerce
Clause powers.  I think it is still possible the Court could answer this question in
Congress's and President Obama's favor.

Why?  At this point in our logic-walk, it is vital to remember a
fundamental principle of conservative judicial thought:  courts should
not substitute their will for the will of the legislature.  Please
don’t take my word for this principle — Judge Robert Bork said it
first.

For decades, conservatives have been concerned, rightly, about the
'activist judge' who subverts the will of the people (expressed
through their legislature) and substitutes their own will or ideology.
 A classic example is the Roe vs. Wade  opinion on abortion, where a
panel of activist US Supreme Court judges overturned multiple state
laws regulating abortion and substituted their ideology and
preferences instead.  Their feeble attempt to couple the Roe opinion
to the Constitution and make a silk  purse of a sow's ear failed.

But a bias favoring deference to the legislature is a two-edged sword.
This is because the legislature doesn't always do smart things.  A
bad law isn't necessarily unconstitutional – it can be bad and
constitutional.  A case in point, at least potentially:  the Obama
insurance mandate.

The conservative wing of the Supreme Court (assuming that they, too,
believe what Robert Bork believes) should not be expected to
substitute their will for Congress’s will unless they first decide
that Congress clearly violated the Commerce Clause with the insurance
mandate.  I’m not sure they will do this.  To put it another way:  if
the Supreme Court majority is NOT offended by the Commerce Clause
power asserted in the mandate, the mandate will likely be approved.

If the Court decides that Congress did not violate the Commerce
Clause, the Court will in effect toss the hot potato back to Congress
for the next 'act':  paralysis, repeal, or amendment.  For men like
Bork, the legislature is where the issue belongs in the first place,
and I think that is where the issue will ultimately end up -- again.

Congress can vote to repeal Obamacare.  If it is to be replaced at
all, it must be replaced with something constitutional.  But here is
the larger point:  don’t count on the Supreme Court to save our bacon.
Instead, we need members of Congress with the guts to cast hard votes
on health, immigration, and the economy after January.

We need members of Congress who understand the Constitution, how it is
interpreted, and how it reflects conservative judicial philosophy.
Such a Senator was Jesse Helms, for whom I worked during his last
years.  Helms showed us that judicial deference to the legislature can
work – provided that legislators have strong backbones and
conservative principles.

Richard Douglas, a Republican, is a candidate for the U.S. Senate in Maryland.


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