Philadelphia Reflections

CHAPTER TWO: The Supreme Court
Will Be Heard

There are exceptions, but in the interest of preserving their own flexibility, the three branches of Constitutional government generally try to stay out of each other's way. The Constitution specifies no remedy short of impeachment for getting on another branch's turf, presumably because the threat of retaliation would make the other branches hold back from it. To resort to impeachment requires a possibility that a particular turf battle qualifies as "high crimes and misdemeanors". That term is so vague it probably implies a threat of exile or execution, which in the past were only considered in hereditary monarchies with a succession issue. While King James I was beheaded for falling afoul of his parliament, many other Anglo-American governments have been changed peacefully since that time. In any event, the events attendant on the passage of the Affordable Care Act were exciting enough that few realized it might soon appear before the United States Supreme Court. Immediately after enactment, twenty-some state Attorney Generals sued that the Affordable Care Law exceeded the limited powers granted by the Constitution to the federal government. Following a puzzling resolution of that issue (that its penalties were really a tax), the Speaker of the House soon announced he was also planning to sue because the President's actions did not "faithfully" match the intent of Congress. Representing only one half of the Legislative branch probably does not give the Speaker sufficient "standing" but if the coming elections provide him with the concurrence of the Senate, it seems unlikely the Court would permit a President to veto his own impeachment.

Responding to this unexpectedly legal turn of events, this book about healthcare and its insurance could, unfortunately, be forced into a series of national debates about Constitutional Law. In spite of strong misgivings that lawyers knowing little about medical care, were further digressing to safer ground from health care, through insurance into Constitutional Law, there seems little choice but to hang on, waiting for an eventual opportunity to get back to medical care. We can consider it lucky that James Madison was anxious for the Constitution to be simple enough for the public to understand. And further lucky that Gouverneur Morris, the "Penman of the Constitution", proved to be talented enough to make it so.

, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 1, Section 1.

The power to legislate is exclusively vested in the Legislative Branch by Article 1. of the Constitution, but the Executive Branch is permitted to issue "necessary" regulations to enforce the law. Because party control of Congress changes, sometimes the new party in control may think what the other party felt was "necessary", is in fact contrary to a new definition. There are two choices: either let the new Congress repeal and rewrite it, or let the Supreme Court issue a mandamus order to enforce that "intelligible principle" which every law must contain if it is to be Constitutional. In the case of the Affordable Care Act, the persistence of Democratic control of the Senate leaves the Speaker of the House only with the choice of a writ of mandamus ("We command") or a declaration of unconstitutionality. The narrow margin by which the Democrats hold the Senate majority does open an additional possibility of defeating them in the November 2014 elections, thereby strengthening The Speaker's case that he represents the whole Legislative Branch.

So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'"[2]

J,W.Hampton v US, 1928

The President does have room for maneuver before any such lawsuit reaches the Court. There are 450 sections to the Affordable Care Act, and the White House staff seems to be busy devising regulations which implement them. However, most of the regulations are emerging in the form of Temporary Regulations, followed by a comment period. Therefore, there is the potential to hold back until the very last moment on making some or all of them into Permanent Regulations. This could create an opportunity to display politically attractive features for the purpose of the November elections, while at the same time reducing the number of persons actually affected. And thus reducing the number with "standing" to join the lawsuits. (The Court has traditionally refused to hear the complaint of anyone who cannot claim personal damage.) This explains how the unusually early timing of the suit of the State Attorney Generals was possible, maintaining the states were being coerced to accept Obamacare duties and costs. There was no need to sell any insurance in order to examine that complaint. Even then, dating from John Marshall's declaration that "The power to tax is the power to destroy", the penalties for noncompliance can only be described as a tax if they remain small (otherwise, they would be coercive).

Turning in a somewhat different judicial direction, many snarls in Medical Care trace to Legislative action; reforms almost always begin in that Branch. But the same logic applies to Courts. If a problem begins with Constitutional design or Judicial action, its reform might best begin within Courts, because the other Branches may feel inhibited. Such initiation is not necessarily "judicial activism". Sometimes Court action alone is needed if Court interpretations have changed an issue; anti-trust is an example. But the most important need for Court initiative is in Tort Reform, where Chief Justices have administrative jurisdiction. Other branches may feel it is not their place to meddle; some Chief Justices may feel administrative intervention is not to their taste. If other problems grow out of Constitutional design or Judicial action, it can also be awkward for other Branches to deal with them. Still, other problems straddle the Branches; Judicial action might at least be considered. For example, hardly anyone would have predicted a collision between the President and Congress while his party dominated both branches; that was true during the brief period after the Affordable Care Act was enacted. The way it was enacted so enraged a segment of the population that political control soon shifted to the opposition in the House of Representatives, and threatens to shift still further in the November 2014 Senate elections. As Mr. Dooley famously observed, "The Supreme Court follows the election returns."

The Affordable Care Act has 450 sections, so it may be some time before it is legitimate to criticize a failure to write and implement all the sections, even though the law passed the House of Representatives in a single day, nearly three years ago. It is therefore much more likely a charge of failing to enforce the intent of Congress faithfully would take the form of asserting that regulations were promulgated based on no underlying intent expressed in the law. On the other hand, just what a clever lawyer can do with a President who promises on television not to do something which has already been done after the direction not to do it is written in (Section 1251) the law, may prove to be a greater challenge.

The Legislative cannot transfer the Power of Making Laws to any other hands.

John Locke, 1690

For lawyers, however, the possibility of modifying Franklin Roosevelt's Court-packing effort is probably the greatest legal challenge in a century. In the 1933 case of Schechter Poultry, the National Recovery Act was declared unconstitutional because of its unconstitutional delegation of regulation to an executive agency. Violation of the nondelegation doctrine may well be present in the Speaker's suit. President Roosevelt responded by threatening to keep appointing Supreme Court Justices until he achieved a majority. Public uproar was deafening, and both sides backed down. That is, Roosevelt did not pack the Court, and the Court upheld , which declared that an Iowa farmer was engaged in interstate commerce, even when he grew vegetables for his own personal use. By some sort of Judicial logic, this ruling has been taken to mean that "commerce among the several states" is just commerce, and the Interstate Commerce Clause of the Constitution has become merely the "Commerce Clause". Such judicial magic was a long step toward eroding the meaning of the Tenth Amendment, and subsequent decisions have considerably retreated from it as the country continues to outgrow the ability of a central Federal government to manage so much over so large an area. It is a matter of considerable importance therefore, whether Obamacare litigation might signal a continuation of, or a retreat from, the direction it took in the Court Packing dispute. It is very hard to predict whether some event, like the appointment of a new Justice, might change the direction of things, but the most immediately predictable event will be the November 2014 Senate elections and anything which might strongly affect their outcome. An additional prediction would be that every nuance of every decision will be scrutinized for some indication of how each Justice might likely vote on an Obamacare case. By that time, unfortunately, the outcome of the Obamacare case may have no more to do with the practice of Medicine, than the Schechter Brothers case had to do with the price of chickens.

Meanwhile, in the increasingly uncertain climate of an Obamacare decision affecting medical care, we offer a few suggested areas where the Supreme Court might take actions as the initiator, rather than the passive referee, of relevant rules. The U.S.Supreme Court might be urged to: 1) Mandate income tax equity for health insurance, disregarding who pays the premium and how, 2)Reconsider the 1982 Maricopa Case; at least, remand it for trial, 3) Assert Judicial leadership in Tort Reform. 4) Define ground rules for coordination between Regulations and Statutes, 5)Review the inconsistencies between Obamacare and ERISA, particularly the question of who has standing in the two instances. 6) Review the rules of the House and Senate, particularly as they apply to House-Senate reconciliation of two versions of a bill. If possible, the Legislative Branch should request this kind of intrusion, first.

2624 State and Federal Powers: Historical Review

2250 Obamacare's Constitutionality

2289 Roberts the Second

2625 What Can Supreme Court(s) Do About Tort Reform?

2592 More Work for the U.S. Supreme Court: Revisit Maricopa

2613 ERISA Is Thrust Into the Battle

Originally published: Sunday, December 22, 2013; most-recently modified: Friday, May 10, 2019