Dissecting the court decision on Obamacare

In order to move forward with the implementation of the Patient Protection and Affordable Care Act, known as “Obamacare,” we have to go with the 5 to 4 majority opinion in National Federation of Independent Business v. Sebelius (2012). This is so even if we realize that the U.S. Supreme Court reached the right result for the wrong reason (see The Lakeville Journal, July 5). The majority held in effect that an act of Congress is necessarily constitutional if it includes a “tax” provision. Questionable, but at least Obamacare was held constitutional.The dissenting joint opinion, however, was truly egregious, not so much because of its subjective bias against a national approach to “Health for All” (on which reasonable persons might reasonably differ) but also because of its near total lack of coherent rational jurisprudence. This has implications for the future of judicial review in this country, and is therefore worth a further critical look now.The minority summed up its dissenting position this way: The majority opinion amounts to “a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” These are strong words. Yet every element of this dissenting summary statement is either false or irrelevant, or both.Since when does a court’s upholding an act of Congress constitute “judicial overreach”? Never. Throughout U.S. legal history it has been universally recognized by legal scholars that judicial review overturning an existing legislative act is an extraordinary, exceptional undertaking — possibly qualifying as “overreach.” However, upholding an act of Congress is simply par for the course. It almost qualifies as “under reach.”What evidence was presented to and considered by the Supreme Court to the effect that Obamacare would be “debilitated” or “inoperable”? Absolutely none. Furthermore, if there had been such evidence, it would not be for a court of law to decide what is “operable.” That is a legislative question, not a legal one. The dissenters’ assertion of fact is in any event irrelevant to the constitutional question of law.How can it be said with a straight face that Obamacare represents “a health care regulation that Congress did not enact”? Isn’t it the whole point that Congress did enact the Affordable Care Act, and now the Supreme Court was being asked to rule on its constitutionality? If Congress hadn’t enacted it, there wouldn’t be a case before the court. To say that Congress didn’t enact the act is patently false. It’s an absurd statement, designed for the gullible.How can the dissenters claim that the public did not “expect” the implementation of Obamacare? They have been “expecting” it for years. Polls show that the majority of Americans want affordable health care. So, they must “expect” it now. What evidence did the court have to the contrary? Absolutely none. And what relevance would it have anyway to the question of constitutionality? None.In a word, the dissent in National Federation is incoherent. It is chilling to realize that in the future the mere switch of one justice will be enough to change a dissenting minority of four into a ruling majority of five, almost irrespective of the merits of the case. This is the kind of arithmetic that led to the disastrous outcome in the case of Citizens United (2010).The foregoing does not lend credibility to or confidence in the competence and reliability of at least four of the “conservative” members of the divided Roberts Court. We can only say once again that Chief Justice Roberts’ last-minute decision to switch was the “switch on time that saved nine.” Did he believe in what he wrote, or did he rather fear the judgment of posterity? In the eyes of U.S. history and jurisprudence, can anything really save this divided Supreme Court?Are we doomed to having our legal and constitutional fate held hostage to a bullet-voting claque of four who espouse extremist ideology, which is bad enough, but who equally appear unable to express their views in terms of rational jurisprudence? Must the eventual outcome of every significant constitutional case depend on the fortuitous swing vote of a single justice to break a 4-to-4 deadlock? Can we not do better than this? Yes, we can. At least, we hope we can. Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.