Friday, June 29, 2012

Five Things You Haven't Heard in the Shouting Match Over the Health Care Decision.

One of the most wonderful but annoying aspects of the First Amendment right to free speech is that one does not have to have any qualifications whatsoever to hold forth about anything at all.  Certainly the firestorm following yesterday's Supreme Court decision in National Federation v. Sebelius demonstrates this fact, with even two news networks rushing to announce the decision before, as John Stewart and Stephen Colbert pointed out deliciously, turning to page two of the opinion.

In fact, in the other opinion read by Justice Kennedy yesterday, U.S. v. Alvarez, the so-called "Stolen Valor" case, the Supreme Court reiterated its prior holdings that even lying can be protected by the First Amendment.  "[S]ome false statements are inevitable if there is to be an open and vigorous expression of views in public and private con­versation, expression the First Amendment seeks to guar­antee," wrote Justice Kennedy for the majority.  

As such, people on all sides of the debate exercised their first amendment privileges yesterday and continue to hold forth on television, radio, print media, as well as social media sites, despite having little or no qualifications or knowledge upon which to do so, in opining about the healthcare decision.  How many of those individuals actually read the 193 pages comprising of the majority opinion, concurrence, joint dissent, and individual dissent?  My guess is, as Maya Rudolph's character on the recurring delightful Bronx Babes skit from Saturday Night Live "none point none."

So, dear reader, should you choose to elucidate yourself, you may do so by reading the entire decision here.   If not, that's on you.  But here are a few things you will learn from reading the decision (and from having an understanding of other aspects of the Supreme Court and its role in the U.S. Constitution).

First thing you haven't heard:  The crux of the decision is simply stated by Justice Roberts on page 31 of his majority opinion:
[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).
Quoting Justice Oliver Wendell Holmes, Chief Justice Roberts points out that the Supreme Court's role in our tripartite constitutional government is not to seek to invalidate Congressional acts, but to seek to sustain their viability.  President Obama had said this himself not several weeks ago (no surprise there, after all, he was once a Constitutional Law Professor.)  Just as lies are sanctioned by the First Amendment, truth is often taken to task, as was the President having made such an observation.

Second thing you haven't heard:    Chief Justice Roberts offers an excellent lesson on civics and how the Founding Fathers designed our nation's government, as well as the entire concept of Federalism versus state and individual rights in the first six pages of the opinion.  Anyone with at least a sixth grade education or beyond should read these six pages to learn how things work in the United States. 
  1. "In our federal system, the National Government pos­sesses only limited powers; the States and the people retain the remainder." (Page 2).
  2. "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution."  (Page 3).
  3. "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."  (Page 6).
  4. Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803).   (Page 6)    

Anyone who has taken any course in constitutional law or even business law, whether high school, undergraduate, law or graduate business has started the course with Marbury v. Madison, the seminal case establishing the concept and application of "judicial review."  That's how the Supreme Court is supposed to interact with the Congress.  If you've heard anything else, it's wrong.

Third thing you haven't heard:  The Supreme Court is a committee charged with an obligation to seek two things: (1) the narrowest application of principles for each case, to avoid creating sweepingly broad holdings which will provide little guidance in the face of subsequent cases with widely varied facts; and (2) a consensus decision by a simple majority that resolves the dispute.

There is no question that National Federation v. Sebelius is a consensus case.  Court watchers and constitutional scholars have suggested that what is now the "joint dissent" may well have been the majority opinion, until some consensus was reached with the Chief Justice to produce a decision that addressed the case before it (the validity of the Affordable Care Act) without unnecessarily extending concepts of how far the commerce clause of the Constitution permits Congress to go.   A better case testing such principles is no doubt down the road --- this case did not have to be that case, and better that such a politically charged case was not that case.

Fourth thing you haven't heard:  The Supreme Court has not “rewritten the law.”  Many challenging the decision (including the dissenters) accused the majority of completely rewriting the Affordable Care Act.  This argument is disingenuous and factually inaccurate.  Not one word of the statute has been modified.  It continues to exist, minus the Medicaid provision, in the same verbiage as passed by the Congress and signed by President Obama.

Fifth thing you haven't heard:   The joint dissenters (Justices Kennedy, Alito, Scalia and Thomas) built their attack on 18th century dictionaries and terms, a tautological approach which strains even those who lend credibility to “strict constructionist” theories.  The constitution was not designed to be effective only in 1784.  It was designed for the ages, with a forward looking inspired group of individuals who crafted its structure and terms.  To insist that any interpretation be based solely upon terms and conditions contemporaneous with the documents creation, despite the passage of more than 225 years of technological and social development is to close off the real meaning and intent of the Founding Fathers, and debases the constitution altogether.  

Justice Scalia has become, through the years, quite adroit at arguing strict constructionism in anchoring the right wing of the court.   The joint dissent in National Federation v. Sebelius shows that the only reason he can claim to be the smartest one in the room, is that he has built a very small, very old room, and has hidden the key.  Perhaps it was that recognition that was behind his bitter, inappropriate, dissent on Monday from the bench in the Arizona v. United States.  Perhaps he has begun to realize that his concept of “democracy by oligarchy” is antiquated, and no longer holds a place in genuine constitutional discourse.

I welcome your educated and informed comments on the subject.  But please spare me (and the site) if you have not bothered to at least read the Chief Justice’s Opinion.


  1. I did not read the Chief Justice's Opinion in its entirety, being most interested in the holding. However, I do appeciate Harold's brief lesson on Constitutional law.

    What this has now prompted me to do is read the Act, particularly the provision(s) in the Act relative to the "penalty" which the Act appears to impose on those citizens who do not purchase health insurance.

  2. The constitution did not exist in 1784.

    1. That's true; it was not effective until March 4, 1789 however my point was not when the constitution was adopted, but rather the sources Scalia and the joint dissenters used to interpret its words. Specifically, on pages 4 and 5 of the joint dissent, they rely upon dictionaries from 1775, 1778 and 1785.