I have heard some people make the argument that the Supreme Court should not be able to overturn ObamaCare. Their reasoning is based on a majority voting for Obama, so any thing he puts forward, or signs into law, is the will of the people.
Where were these same people when Ohio’s governor, John Kasich, and Wisconsin’s governor, Scott Walker, had their major legislative achievements put up for a direct democracy-style vote? Even if the argument by Republicans against Obama was, “They voted for you then, but we think you are ruining the country,” how is that not a double standard?
The argument is that there may be parts of ObamaCare that violate the Constitution. Since it is the supreme law of the land, it must be upheld. Here it comes, “Jordan, you know that the Constitution is a way for white men to legally discriminate against everyone else.”
We could go through the Constitution and explain it point by point, but that would resemble a book. The argument for the living Constitution is basically as society evolves, so should the law.
Those for a “dead” Constitution will argue that if changes need to be made, there is a process for that. The document has been amended nearly thirty times and has been revised to take out the parts we can all agree were dumb. Sadly, politics interfered with philosophy, but we eventually realized that the 3/5ths Compromise and the regulations on Native Americans were stupid.
Though the document has adapted, that doesn’t mean we should alter the document rapidly for political gain. If people want to change it, then go for it. If it’s done legally, then there’s not much anyone can do.
There has been the question of severability concerning the individual mandate. In the version of ObamaCare that was signed into law, there was no severability clause written into it. Therefore, if the individual mandate is deemed unconstitutional, then the whole bill is as well.
Mark Levin points out that even though that is what typically happens, the court can do what it sees fit. Since the ObamaCare legislation is so vast, and has already started being implemented, some argue that all or none of the law can be struck down.
Is the argument really, “Government is huge, and the Constitution is in the way”? If something is violating the law, why should it continue to exist? The answer is certainly not because it would be too much trouble to make things return to a level of compliance.
Justice Ginsberg’s suggestion that the entire law should not be scrapped, but rather “salvaged,” leads one to think that since “ObamaCare would be completely different” the court may try to amend the law themselves. Mark Levin points out that this would run head on into the separation of powers.
For as appealing as the sound of nine John Jays crafting legislation might be, that is too much power in the hands of unaccountable judges, which is why the Constitution prevents it.
James Madison pointed out that the Constitution protects federalism and the separation of powers. Sometimes things happen that are technically unconstitutional, such as Social Security. No one with sense thinks that will get challenged and virtually no one has a problem with it, so there is no need to worry. The General Welfare Clause and the Necessary and Proper Clause are a pretty thin defense though, wouldn’t you say? You can justify anything with that rationale.
Who knows how this will pan out, but the Supreme Court’s decision is expected in June.