The Supreme Court will never be able to satisfy the entire nation in any decision they make. However, with its recent decision to uphold the Affordable Health Care Act, they have angered a lot of Americans. Obviously, they decide issues that are critical in the minds of the citizens, but they can only decide one way or the other, leaving half or more of the people dissatisfied. Public opinion is never a consideration in a Supreme Court decision. That is part of the beauty of the court; they are free to decide based solely on the issue of Constitutionality.
However, Thursday’s ruling seems to have been something of a change in the basics used to decide cases in two different areas:
The Power of the Supreme Court, as I have said repeatedly, is in its ability to decide the constitutionality of laws. This is their singular, most important and powerful function. Furthermore, they derived this function in the Marbury v Madison case during the Thomas Jefferson Administration and under the direction of the court’s most famous Chief Justice, John Marshal. The court has been using this power for most of its existence and the nations. Although I am a historian, I am absolutely unaware of any case that has been decided in this unusual way.
There are a lot of concerns about “Obamacare” as this law is unaffectionately called by the 56% of Americans who oppose it and the 26 out of 50 states that brought the lawsuit, upon which the Court ruled, the most controversial and presumed death sentence for the Constitutionality of the law was the Individual Mandate. Opponents presumed that the law would be struck down because of the Individual Mandate or that the Individual mandate would be struck down, thereby crippling the law.
The Individual Mandate was, in fact, the problem that could have brought down the Affordable Health Care Act. In this portion of the law, the government mandated that everyone must purchase health insurance. From the beginning, this seemed to be the weak link in the law. Americans vehemently argued that the government cannot force people to purchase something. The arguments seemed very logical as it was argued that if one refused to purchase the insurance, what could they do to you? Put you in jail? Then you would have insurance provided free.
The fact is that the Individual Mandate did turn out to be Unconstitutional, however, that did not cause the court declare the law or the Individual Mandate to be unconstitutional. Rather, the court did something that I believe to be historically unprecedented: they redefined the original law in order to make it Constitutional. Rather than strike down the mandate, they changed the interpretation of the mandate to a tax which Congress is authorized to pass into law. If the Supreme Court gets away with this kind of decision, they will have a new and very powerful tool at their disposal. Not only will they have the power to declare laws unconstitutional, they will have the power to redefine laws. This will simply be too much power for the Court to wield. The very system of checks and balances built into the government may collapse with such a new power.
In addition to this evolution of court power, the question begs to be asked regarding Justice Elena Kagan. It was reported that she would recuse herself from this case, as she was “Solicitor General during the highly contentious Congressional debates over the Affordable Care Act.” http://www.lifesitenews.com/news/kagans-participation-in-obamacare-taints-the-decision “Her evident refusal to explain why she hasn’t recused herself given all the substantial information out there, taints the decision,” Judicial Watch President Tom Fitton told LifeSiteNews.com.
The problem is that the entire decision now becomes suspect. She should have recused herself by law.
Federal statute 28 U.S.C. 455 demands that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
“Elena Kagan should have recused herself from this decision, considering she was Solicitor General during the highly contentious Congressional debates over the Affordable Care Act,” constitutional scholar John W. Whitehead, president of The Rutherford Institute, wrote in an e-mail to LifeSiteNews.com. “She was certainly in a position which would call into question her ability to be impartial in her ruling.”
Of course, had she recused herself, the vote might very well have been tied which would have meant that any lower court decisions would stand or the court could decide to hear the case again. Hearing the case again is not something that the court usually does (or ever has done).
Given the above two circumstances, it seems that the court has done two things that it has presumably never done before.
I find both of these things to be unacceptable. I believe the American People will also.
John Wayne Tucker