Keywords or Terms: US Supreme Court; Eleventh Circuit Court
of Appeal Ruling; US Congress: Constitutional Argument; PPACA; Medicaid Eligibility; 2012 General
Elections; Mandatory Provisions; Congressional Powers; Democrats and Republicans.
Recently, the United States Supreme Court agreed to hear the
challenge to the Patients Protection and Affordable Care Act, an act designed
to overhaul the American Health Care System. The agreement was widely covered
in the press as a story of resolution – over lower court decisions which have
kept everyone wondering if the health care reform law is about to be junked - in the
face of antagonism and unwelcome criticisms
of the right of congress to make a law that has a mandatory provision; or, one that requires citizens to obtain or buy
health care insurance as a product. But I believe it is a story about the right of the
United States Congress to make law.
Did the United States Congress fail to address all the
parliamentary procedures for enacting a bill? Did constituent members of
congress fail to debate the provisions in the health care reform law in both
chambers of congress? Did Congress violate some parliamentary procedures in either chambers of congress in the process of passing the health care reform law? Did the
constitution permit the United States Congress to issue a mandate in
a law? Has congress exceeded its constitutional authority by extending the
eligibility converge thresholds that States must adopt to participate in the
Medicaid program? First, we may be able to get answers to these questions by checking the congressional records.
Second, we may be privy to the wheeling and dealing on congressional floors when
the highest court of law hears the case over the constitutionality of the
health care reform law. Third, we may end up being confused or disenchanted by the effort of critics of the law to bring this case before the highest court in the land, hoping to discredit the whole law as unconstitutional. However, my guess is, answers to all these questions
will pit two opposing teams of of brilliant lawyers against each other; and, either
will re-affirm congressional authority to make laws or erode the powers of our
lawmakers.
Dig past the current acrimony of whether the health care
reform law is unconstitutional, unworkable or unpopular, the decision from the
United States Supreme Court will show how relevant congressional authority is
to the way we live our lives as ordinary Americans. Can our lawmakers actually
bind us in a democracy and if they may, why are Americans not taking conscious
effort to find all the answers about the past of our lawmakers, their beliefs
and convictions, their education and abilities, their sponsors and financiers,
and their past experience in leadership and their shortcomings. Why? Answers to
these questions and inquisitions about these questions, will allow us make
better judgment about who is representing us in congress; who may actually
mandate us to do some things that we may not in totality be in agreement with or who is actually serving the public by his or her representation in congress.
My premonition is that fear is causing the acrimony over the Patients Protection and Affordable Care Act. Many people
in the right would like the Supreme Court to strike down the whole law as
unconstitutional; those in the left, seek an alternative ruling that will allow
the law to stand. The fear in both cases can either be described from the
context that, if the court rules in favor of the constitutionality of the law,
Democrats win and by default their leader, President Obama, stands a better
chance at the polls in the 2012 General Elections. On the other hand, if the mandatory
provision in the law is invalidated and the whole law is found
unconstitutional, Republicans win and by default their candidate for the
office of the Presidency, whoever it maybe, stands a better chance at unseating the current
President.
Delivering a judgment either way, very close to general
elections, has the potential or power to tilt the result of the general elections either
way. Political Party leaders, who are more interested in preserving their
position(s) in congress or the dominance of their respective party in congress,
want a favorable ruling for their position from the nine-member judgeship of
the Supreme Court. Either leadership group in the respective major parties in
the US,
do not want their wishes dragged down so close to a general election.
Unfortunately, their demands are essentially inconsequential at this time as the Supreme Court, is exerting its prerogative of independence from the two branches of
government, executive and legislative branches, by determining to hear the case just few months before the general elections next year. A case has been appealed from
the eleventh district circuit court of appeals and the Supreme Court has assigned on its schedule, the
month of March 2012, to hear the argument on the case. Whether their potential
ruling runs afoul of the interests of either parties or their positions on the health care reform law, is essentially, irrelevant; or as they say in my neck of the woods: "Ain't the
judges’ problem!"
Although what I have discussed on the blog tonight seems
largely a criticism of the challenge to the mandate provision of the Patients
Protection and Affordable Care Act or the choice of the highest court to hear the case on an election year, I do not want to appear unduly despondent
about the possible reach of congressional powers in making laws; or, the
Supreme Courts’ prerogative to hear the case from the eleventh circuit court at their convenience or just before the general elections. Even if I appear to be in complete
support of the law in my past entries on this blog, and by default the mandate provision in the law, I still
believe that implicit in this requirement, is the desire to
hold down health cost inflation that has been the bane of contention over whether Medicare and or Medicaid can survive another half a century. The ideal situation would remain the need to improve health care delivery to many more
Americans and create a better health care system, thereby assuaging the
criticisms from many doctors, hospital and professionals in the health care
industry; that, what we now have, is an illness treatment industry not a health
care system. The point of my argument is that there are good enough reasons to sort out the constitutionality question; however, I have some decrepitude over whether the year of a general election is an ideal time to hear a case like this.
The mandatory provision of the health care reform law
answers two central questions to health care delivery in America: 1) how can we challenge
insurance companies to cut down on premiums paid by consumers in the effort to manage health care cost inflation? 2) Since the mandate provision of the
Patients Protection and Affordable Care Act has been construed as closely tied
to two other provisions in the law, one forbidding insurance companies from
turning away applicants and another barring the companies from turning away
patients with pre-existing condition, how can we make underwriting health
insurance policies palatable or somewhat profitable for the insurance companies
to want to remain in the business? Consideration of these central questions is
rather essential for attorneys arguing un-behalf of the federal government as
to constitutionality of the mandatory provision of the law. The government
attorneys must be deliberate and spontaneous in their argument before the
highest court in the land. To show less spontaneity in argument or failure to
close-out the opponents of the law as mischievous and unwholesome in their
advancement before the Supreme Court, is to allow trivialities to overtake the
substance of the health care reform law.
The benefits of the health care reform law have to be
re-asserted before the Supreme Court. Just as the sixteen hour work day was
outlawed about a century and a half ago, so must the attorneys for the
government, argue that the nation is better-off with a health care system where
majority of the citizens of the country are mandated to carry health care
insurance than one without, thus leading to the high volume of hospital emergency room traffic. While recognizing that opponents of the law may have some
reservations regarding some provisions of the law that hardly justifies the
argument that the law or the mandatory provision in the law makes the whole law
unconstitutional. The attorneys representing the federal government must insist
that there is a long-term benefit to the law; and the opponents of the law have
not given the provisions in the law a chance; as many of the provisions in the
law that opponents are arguing against are hardly implemented yet; and if not
implemented, how can these critics of the law crucify the whole law; or, argue against events and experiences that
have not occurred or materialized.
We must not be surprised if the US Supreme Court upholds
most parts of the law and still rule against the mandatory provision in the
law. The ideal situation is to have the highest court in the land leave intact
congressional powers to make law, whether the law has a mandatory provision or
not. The court could isolate some parts of the law that thread on
constitutionality question and leave it unto congress to issue amendments to
take care of the constitutional question of any part of the law, if there is
actually, any. The court does not have to rule on hyperbola or hypothetical
situation that has not materialized because some of the provisions in the law
that are contested have not been implemented. The court usually in cases like
this is always ahead of the litigant and defendant and attempts to provide room
for possible visitation of issues in the future by congress, where it is essential, and in some cases rule in finality as to the question of constitutionality. Based on the recent ruling from the Washington DC Appellate court, it is
possible that the court will rule in favor of the mandatory provision.
There is one more point in this communication which I would
like to mention. This is the fact that two days and five and half hours have
been set aside by the US Supreme Court to hear arguments from the opposing teams on the act before the court. Attorneys representing the opposing camps are
expected to present arguments on the four main issues emanating from the Eleventh
District Court of Appeal, Atlanta: 1) Can congress impose individual mandate in
the purchase of health care insurance; 2)
Can congress demand that State comply with threshold provisions to participate
in Medicaid; 3) Can the Patients Protection and Affordable Care Act remain intact,
even if parts of it are invalidated on the grounds of constitutionality; and,
4) Does the Anti-injunction Act guarantees the Supreme Court to rule on a case
as this. If the tendency is to adjudged congressional powers in lawmaking, an
half and half, each from either side is enough to represent their position or
fail to justify their grounds. The constitutional provision of the right of
congress to make laws, should not take too long to make or debunk. If the issue
is to address the mandatory provisions of the law, maybe another thirty minute
at most.
The arguments over the mandatory provision of the law will probably
tell us two things: 1) Congress has the power to make laws, whether with a
mandatory provision or not; Congressional powers to make law are unlimited and
in some circumstances, where the provision(s) in the law run afoul of constitutional
requirements, there are room for call to amendments to the law, especially,
where some of the provisions in the law, have not come to play, or have not
been phased in. the fact that attorneys can argue over the extent of
congressional powers is in order; however, the fact that the law passed is
constitutional or not, is one that may be subject to debate. Where the
commonsense argument comes in is simply this: can opponents of a provision in a
law argue against it under the question of constitutionality, if the provision
has not been implemented? The purpose for which congress make law is to address
issue of concern that has been brought before the body as a bill working its
way through committee and work groups. Where there are some provisions that are
out of line with the constitution, it is probably identified before the law is
passed. If there was an omission, it is imperative that observers bring a case
before the court as is rightly done in this case. However, if the essence of
the issues before the court is to discredit all the provisions of the law in totality,
there is probably a suspicious of mischief which the court cannot entertain.
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