Obama Care and The Big “If” – Severability - Interpreting Tea Leaves and Roberts Role in Writing the Majority Opinion. Commentary and Opinion

The United States Supreme Court - Image: NaitonalJournal.com

From the beginning of the passage of the Health Care and Education Affordability Reconciliation Act of 2010 has been problematic – politically and logistically. Written in what amounts to a biblical tome format, the Act to Overall America’s Health Care to a “State Controlled” system brought about a schism in the population in 2010 that was not anticipated by either major political party. The Tea Party, focus on taxes, turned to focus on the Legislation known as “Obama’s Signature Legislation” or, in other words, the only thing that the President has accomplished, of note, in his term to date. Today, the Supreme Court will be ruling on the constitutionality of the Act, and, as such, there is much speculation as to how that ruling should or may come down.

The man at the center of the all the focus is one Chief Justice John Roberts – who is rumored to be writing the Majority Opinion. Forbes suggests that the Court is likely to partially overturn Obama Care, however, as to the actual Health Care Act, there are only two options available: If one believes the Constitution to be fluid and living document that is outdated and therefore easily manipulated to fit the era, then the Bill would stand. However, if the majority are strict constructionists, believing that the Constitution is to be interpreted as written – the Bill falls. The Bill falls, not in part, but in total due to one glaring mistake made by the House and the Senate in their rush to push this Bill to Obama’s desk for signature – they failed to include a severability clause.

There is without doubt speculation as to why this may have occurred, that if the Bill were to be challenged and then struck down, it would allow for the Administration and chief architects to rewrite and rebuild, which makes little to no sense, given the volatility of American politics and the obvious opportunity to win or lose elections based on the mood of the nation. In other words, Obama had one shot, and one shot only at getting his legislation passed. He now has one shot, and one shot only at seeing it either stand in total and or fall completely. From this opinion, the fact that the federal mandate included in the bill, forcing individuals to purchase an item (health care), would be in violation of the Commerce Clause. This is the primary case which has been brought by multiple states to the highest court – the fact that the law, as written in unconstitutional.

The further fact that there is no “safety net” or severability clause included in the act, suggests that should the mandate fail to meet the test of Constitutionality, then the balance of the Act would, by association, or the inability to disassociate, (lack of severability), fall as well.
Roberts, who is a strict Constructionist in the role of writing the majority opinion, yet this offers no clue as to which way the majority ruled on said Health Care Act. Precisely because he has noted he would write the opinion regardless of the ruling. There is some basic math to suggest, however, that the ruling will not be in favor of maintaining the law given the make-up of the court.

The Courtin current makeup: Roberts, Chief Justice (Strict Constructionist), Antonin Scalia, (Strict Constructionist), Anthony M. Kennedy (Undetermined), Clarence Thomas (Strict Constructionist), Ruth Bader Ginsburg (Legislate Not Interpret), Stephen G. Breyer (Legislate Not Interpret), Samuel Anthony Alito (Strict Constructionist), Elena Kagan (Legislate Not Interpret), Sonia M. Sotamayor (Undetermined). Therefore, there are 4 that would interpret the Constitution as it stands, there are 3 that would certainly re-write the entire Constitution given the chance, and then there are two that have written opinions that are contrary to one or the other stated points of view. The later are the “wild cards” of the Court.

In any event, the law, as written will be adjudicated today by the Highest Court in the Land, without political motivation (for those non-legislating justifies), however, it is this opinion that there can only be two Constitutionally correct outcomes, given the fact that there is, again, a lack of severability – the Bill will either be struck down in its entirety or held valid in its entirety. To rule “in part”, makes no sense if one is a Strict Constructionist. On the flip side, if it is ruled “in part”, in any shape of form, then it will be clear that Robert’s Majority Opinion, would indicate that the influence of those who would legislate and those that would, for lack of a better phrase, sit on the fence to render a decision that is equal to both sides, solving nothing, and being rather politically correct for both parties.

If the law is deemed unconstitutional, and without the severability clause, the entire law collapse, then it is the duty of the Congress and the Senate as they now sit, to re-write as quickly as possible, a sensible plan for the nation – one which might imitate yet another Massachusetts Insurance Model, that of the Auto Industry.
In extremely simple terms: Everyone in Massachusetts is required by law to own auto insurance – the State passed a law allowing Massachusetts residents greater access to multiple carriers rather than the original “few” that existed. The result: the costs went down significantly; individuals were given a wide range of plans to choose from, with varying levels of benefits, making the individual decision to purchase what they needed at a price they could afford.

In the same wise, Health Care could be adjudicated, open to competition across state lines, kicking the literally monopoly that certain carriers or quasi cooperatives (such as Blue Cross Blue Shield), have over individual states to the curb – mandating few benefits – those that are preventive care should stand, and offering a la cart, those current mandates that individuals could purchase as a “rider” to their policy – paying a higher or lower premium, depending upon need and finally, taking personal responsibility. As to Medicaid and Medicare – the Federal and State agencies could further mange the monolithic budget by instituting a program that vests the insured in their health care program through a rewards systems. This rewards systems has been in place in self-funded insurance plans, and works towards a reduction of fraud and reduction of premiums paid by both the employer and the employee. The gist: Employees (or recipients of benefits) monitor their health care bills, and report errors to the plan administrator, those individuals finding erroneous or fraudulent claims would then be eligible for a “reward”, either a percentage of the savings, or in the form of increased benefits (add a mandate from the menu.) Streamline, and simplified, a plan that allows everyone access, without fear of fine, and with the ability to control costs, for themselves, their employer and or even the State and/or Federal Government.

One final note: for those states who have instated some form of mandated state health plans, prior to Obama’s national model, would they not then, be compelled to look at the model they currently use, and compare their health care programs to their auto insurance programs and, perhaps, just perhaps, offer the aforementioned scenario to the consumers in their States, bringing more affordable health care coverage to all residents. Of course, this would have to pass muster with the individual carrier – cooperatives that have strangleholds on certain states, and serious lobbying power in the various Capitals.

President Obama Warns Supreme Court On Overturning His Health Care Reform Law – Lawmakers Not Elected – Complaining About the Separation of Powers?

Chief Justice John Marshall - President Obama takes History and the Court to Task - image westliberty.edu

President Obama has warned the Supreme Court, ahead of their pending decision on the Constitutionality of his major body of work as President, the national health care reform act, that they are not elected, rather appointed justices, (Wall Street Journal) which is stating the obvious.

His complaint to the Justices pre-decision, rings somewhat hollow coming from a Harvard Law Review student – in effect, the President should have known better and be fully versed in the Separation of Powers brought to bear by the framers, and by the Marshall Court’s decision to bring balance to the rights of the Legislative and the Executive Branch – a key feature of the U.S. Government that any high school student taking a History Overview class should be well aware.

To review:
The Separation of Powers, Article III of the U.S. Constitution as define by Chief Justice Marshall:

'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
''If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.'' To declare otherwise, Chief Justice Marshall said, would be to permit a legislative body to pass at pleasure the limits imposed on its powers by the Constitution.”
Suppose, he said, that Congress laid a duty on an article exported from a State or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath. Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws ''which shall be made in pursuance of the constitution'' are to be the supreme laws of the land.”

(Findlaw)

The president’s chief complaint to the Justices follows that a the body of legislatures duly elected, passed a bill that was a) not popular with the general public, and b) the only body of work which can be cited categorically as belonging to his presidency, by a majority. However, if one looks to the original intent, of the Marshall decision, it was to prevent exactly that from occurring (See Above: should the Court not have the ability to oversee the laws passed by the Congress (and signed by the Executive Branch (the President, it would allow Congress to impose laws on the people that were clearly not Constitutional.)
It is the framework of the Separation of Powers to which this nation holds - that no one branch is subject to supremacy but that all are under a system of Checks and Balances to protect the populace from overreaching and burdensome legislation.

Does the Health Care Reform Act meet that test?

It was passed in a rush on in late December, the Democrats literally held the Congress in Session, the bill was not only lengthy, often incomprehensible, with little time for anyone to read the entire bill prior to the vote to pass the legislation – it was a purely politically motivated act. Had the Democrats worked to seriously craft a bill that would have not have not passed muster should the Commerce Clause of the U.S. Constitution be remembered. It was, immediately - and by those causal students of the Constitution to the legislators who opposed, ostensibly for political purposes, but one must give credence to the possibility that, be they Democrat of Republican, one might actually consider the Document of the constitution (or the guidelines for running our Government as set forth by our founders), to be inviolate.

Clearly the President should have known better, and now he complains, yet does not know the outcome of the decision? Is his “pre-emptive” warning to the Supreme Court to rule in his favor (or in Favor of upholding the Mandate a bit premature – that is of course, unless he is certain that his largest body of work will not pass Constitutional muster. The later is most likely.

Should the law be struck down, any portion, it will all fall. This due to the fact that the law was written without a Severability Clause, something either missed in the haste to push the legislation through the Congress, or intentionally included. Intentionally? Yes, in case the Court would at some point be a more liberal to moderate court, one filled with justices who felt that the Constitution was just an archaic guideline to be manipulated or changed at will with the times – the progressive school on the Constitution. Justices of this ilk are installed in Circuit and District Courts, as well as several who sit on the Supreme Court, most notably two appointed by the President himself. However, who would have thought that the people would stand up in twenty seven states and counting and quickly file cases with the Supreme Court to hear the matter on the basis of the Constitutionality of the Bill? Surely not the President, apparently, he never saw it coming.

It is less to do with politics, from the right to the left, and more to do follow the intent of the law as it has been written. It has been known since was discovered to be in violation of the Commerce Clause, that the Bill itself did not contain a severability clause, which would have allowed certain elements to stand on a case by case basis. Therefore, whatever the Justices Decide, will have an impact on the American Public, depending upon whether one is an individual who believes the Government should have more power over the people by mandating they purchase a good, item or service, against their will, or face penalties’, or whether, that mandate may not be in the best interest of the general public.

It would also behoove the President to note that although the Supreme Court Justices are not Elected, he is, along with all the Democrats who were coerced in a process that began in December and ended in March of 2010 and complicit in signing the Law – to recall the election of November 2010. It was an election that was historic in proportion as to the losses of many of those members who passed that bill. The Democrats who pushed that legislation through against the will of the people, are not appointment, therefore, they were fired.

In having read the legislation, in its entirety, which is mind-boggling boring, yet full of areas that are either unclear or obviously lending to bigger government, more oversight of the people by the government, and the power of the government over the people to fine them should they not comply and purchase what the government demands. It is clearly in violation of the Commerce Clause, a first-year law student who is aware of the historical significance as well as legal precedents set by the Marshall Court would know better.
It is simply an overreach of the Congress, and should those Supreme Court Justices rule on the side of the Constitution, the Law Simply will not stand. Suddenly, the President and his calls against judicial activism (or his definition of judicial activism, which is when Justices actually follow the Constitution, as directed), if acting in a bipartisan manner. For decades, regardless of whether the appointees were made by Republican or Democrat Party Presidents, there have been decisions questioned, by Conservatives no less, on the fact that a Justice – redrafted legislation or upheld legislation contrary to the principals of the Constitution, from the bench. One cannot have one’s cake and eat it too.

It is the arrogance of the Executive Branch, however, to lecture the Supreme Court that appears to be missing from this discussion. The fact that the President feels that the Congress, His Congress, and His Legislation who spent more than half of his term of office crafting a bill, that bill should trump the rights of the Judicial Branch. It is the politics in play, not the care of the people, nor the rule of law, but simply an election year. The President faces several strict constructionist (those who adhere to the tenets of the Constitution), and therefore, is most likely showing bravado in the face of a loss, considering the time spent on that bill, rather than on other issues of import, it will leave him without a legacy. However, in some opinions, that legacy is one which he might be better off without, and perhaps he should, if the decision is to overturn the legislation, thank Justice Roberts and his Court for saving him from a legacy of embarrassment.