Sunday, October 2, 2011

Constitutional Clash over PPACA: Beware of preconceived notion?

Keywords or Terms: US Supreme Court; Docket Number; Constitutionality; PPACA;  US Department of Justice; Virginia; Florida; NFIB; Liberty University; Katherine Hayes; Sara Rosenbaum

The nation’s highest court of law will be reconvening this week and it is expected that ruling over the issue of the constitutionality of the health care reform law may end up on its docket. Records show there are other cases, about forty-nine on the US Supreme’s Court docket in the current session; but not the constitutionality clash over the PPACA. Legal experts insist though that the high court will not shy away from hearing this case in the current session, as several rulings from other districts and appeal courts have created close to a pandemonium over the issue of the constitutionality of the law. Thus, we must anticipate arguments from attorneys on both sides of the case before the nine-member judgeship court in this session. The blog today contemplates the real and the preconceived notion of the constitutionality of the Patients Protection and Affordable Care Act.

The issue of a mandate in the law, whether or not our government can require everyone to buy health care insurance is high on the consideration of the constitutionality of the law. The argument for constitutionality of a mandate in the law has been successful in some district courts of appeals while it has failed in others. Some States attorney generals have recruited top litigants to represent their position before the Supreme Court. Likewise, U.S. Department of Justice has developed a core team of their bests to prepare against the onslaught on the law from various interest groups. Arguments that will ensue before the nine-member high court will shine light on the power of congress to make laws and the executive branch to sign into law, bills that have been debated and voted on before congress, even when some provisions in the bills may be controversial. Given that the current criticism over the mandate provisions of the law has been a lightening rod issue between the left and the right, very few will argue that the politicization of debates over the constitutionality of the law may drive the high court to consider the issue now in current session, though the case has not been listed in the Supreme Court’s docket.

The commitment from congress probably led to the issue of inclusiveness of many people in the health care reform law. Opponents of the law however, see the same concept of inclusiveness as bases for procedural errors in the way the law was passed; and a few of these opponents call to question the constitutionality argument for the inclusiveness doctrine associated with the law’s mandate. The provisions in the law have been subjected to antagonism from private citizens, universities, state and federal lawmakers. Attorney General from the State of Virginia has argued that the Patient Protection and Affordable Care Act is an unlawful exercise of congressional authority as it violates the State’s sovereignty clause and invalidates the compulsion of individuals from the state to buy health care insurance. Twenty-six states led by the State of Florida, the National Federation of Independent Businesses (NFIB), and two citizens, argue that in addition to the mandate provisions of the law, the law is in error with respect to the associated tax penalty for not carrying health insurance, establishment of state health insurance exchanges and responsibility of employers to provide coverage or subsidize coverage for their workers, if employing a minimize number of employees.

The inclusiveness doctrine espoused in the law through the mandate provisions was called into question in the Liberty University and Thomas More Law Center’s suit settled by the court; the courts vehemently ruled that the individual mandate of the law is constitutional. The contested provisions in the law with respect to mandate issue were found to be preconceived, even though plaintiffs in the case had legal standing. The provisions are expected to come into effect in 2013; notwithstanding though, the court had issues with the financial obligation that the plaintiffs and citizens will carry come that date. In the case of the Florida et. al v. Sibelius, Federal District Judge Roger Vinson dismissed four of the six counts in contest and allowed for hearing, the remaining two counts which had to do with congressional authority under the commerce law and whether the Medicaid requirements is in violation of state’s sovereignty.

In a November 2010 article, Katherine Hayes and Sara Rosenbaum, succinctly dissected the challenge to congressional power with regard to congress’s powers to regulate interstate commerce, highlighting the relevance of the First, Fifth and Tenth amendments to the whole debate regarding whether states may act on any issue that impacts their citizens except congress prevents them from doing likewise. As defined in their article, here are the constitutional issues at stake:

1)      Federal Authority to Regulate Interstate Commerce: The Constitution gives Congress the power to “regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The majority of the cases charge that Congress exceeded its authority under the commerce clause in enacting the individual requirement to maintain health insurance coverage.

2)      Federal Authority to Tax and Spend: Article I, Section 8 of the Constitution gives Congress the authority to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general welfare of the United States.” Article I, Section 2, clause 2, requires direct taxes to be “apportioned among the states.”

3)      The First Amendment: The First Amendment prohibits Congress from enacting any law “respecting an establishment of religion,” or “prohibiting the free exercise thereof….”

4)      The Fifth Amendment: The Fifth Amendment to the Constitution states that “No person shall be … deprived of life, liberty, or property without due process of law.”

5)      The Tenth Amendment: The Tenth Amendment provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

All these issues look rather critical and essential to determining the constitutionality of the law. While some Judges and attorneys acknowledge that there may be great argument for and against the constitutionality of the whole law; it is apparent that only the adjudication before the Supreme Court can determine the real merits of these constitutional issues. Current supporters of the law feel some frustration with the basis of the argument of the groups that have brought case against the law in several federal and states courts. The simple reason for this frustration: it is impossible to fulfill all the constitutional requirements in all laws. Laws are made based on available information regarding the need for provisions in the law and lawmakers' decision to enact laws do not rely severally on the constitutional appropriateness, though very important, it hardly drives all the provisions or contents of a law. Their arguments are drawn from amendments to laws experiences after initially passed; and, associated questions from critics regarding whether the law met all the constitutional threshold. The fact that some provisions in the law are deem to be in danger of constitutional requirements, do not invalidate the whole law, as critics would want us to believe. The calls to invalidate the whole law before the lower courts are seen as conscious malice on the part of critics. This is probably a great reason why the Supreme Court may have to save everyone from the misery and nagging question of the constitutionality of PPACA.

When the Supreme court asses a law for its constitutionality, they are usually sensitive to the motive of congress or their intention as to the meaning of the provisions in the law. On a constitutional level, determination are made in suits before the court to correct for mistake where there is the possibility of erroneous danger to the public and or, invalidation of constitutional provisions with respect to the application of the law. More often however, the Nine-judge seating court, simply rule either way, in support or against the constitutionality of the law. Where the judges are generally convinced that their decisions in support or against the constitutionality of the law are rational, either still votes his conscience or position on the critical provisions. Judges are generally convinced that their votes indicate their understanding of the constitutionality of the provisions in the law; or, where the constitution stands on raised issues of merit. In reality, a substantial number of decisions from the high court are based on facts and evidence presented by the prosecutor and defending attorneys. When the Judges sense some danger in the arguments advanced by either supporting or defending attorneys, the judges are generally cautious of their ruling.

The kind of preconceived emotional arguments from either camp on politically charged issues hardly sways these judges. Seasoned attorneys before the supreme court have learned to trust the instincts of the judges by rummaging through their past decisions on high button politically charged cases similar to the one at hand before the high court. Being cautious of past rulings and stance of the individual judge on Supreme Court's bench is how the best of attorneys, or representing attorneys, predict the possibility of a judge ruling in their favor. Seasoned attorneys trust that the judges will rule in a pattern symptomatic of their legal biases; although each is willing to evaluate the merits and argument presented by attorneys before their court, afresh. So, where do the lucks of the pro- and anti-Patients Protection and Affordable Care Act groups stand? No one can tell, until the case is brought before the Supreme Court, arguments presented from both end of the spectrum and the judges hand down a decision. For those in a hurry, maybe it will be wise to wait until the case(s) get a Supreme Court docket number in the current session!
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