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The Health Care Reform Case, and Legislating from the Bench

Updated on March 29, 2012

Are We Really a Democracy?

I am writing this the day after oral arguments were completed in the Supreme Court case regarding the health care reform bill. All indications are that this is going to be a close vote, with the four liberal and four conservative justices most likely voting as expected. For these eight justices, the oral arguments were mostly a waste of time since their decisions were probably made a long time ago. So the fate of this major piece of legislation that will impact tens of millions of citizens could come down to one man, Anthony Kennedy. So with the exception of this one “swing” justice, this hugely important decision comes down to political ideology more than the merits of each side’s arguments. So in that sense, this hallowed judicial body is just another example of American politics as usual.

If you asked most Americans, they would say that the United States is a democracy based on the principle of majority rule. The Supreme Court (and courts in general), however, is the ultimate check on majority rule. So even if a bill supported by most Americans was passed through the Constitutional legislative process, it can still be nullified by the Supreme Court. In many cases, we have been blessed by this ability of the minority to avoid oppression at the hands of the majority. But unfortunately, in cases without clear Constitutional guidelines, you often end up with a situation in which one person makes a major, legislative decision as opposed to a body of elected leaders.

Sure, these justices were originally selected by elected leaders, but the ideological makeup of the court can often vary widely from the makeup of the population. These justices, after all, often serve for decades, and each party’s ability to appoint judges is as much of a reflection of when former judges died or retired as any past electoral success. And just because a person was nominated by a Republican or Democratic president does not guarantee that he or she will always behave as a conservative or liberal. So in my view, these nine individuals who serve for life, never have to worry about elections, and exercise the power of judicial review are clearly the most powerful government officials in the United States. And if this is true, then the federal government is more of an aristocracy of elites than a representative democracy (or, if you prefer, a republic).

Now you could have a long, fascinating discussion about the Constitutionality of the new health care reform bill. Clearly, there is nothing in the Constitution about health care. General statements about “promoting the general welfare” are as close as you are going to get. The Constitution also does not give the government the power to force individual citizens to buy anything in the private sector. Sure, there are laws on the books that require people to buy car insurance and homeowner’s insurance. But individuals can choose to neither drive nor buy a house, so it’s hard to argue that they are being forced into buying these types of insurance in the same sense as the health care mandate.

But whatever decision the Supreme Court makes, a couple of things are clear. First, if the health care mandate is declared unconstitutional, then the rest of the law as written is not financially viable. If health insurance companies are required to insure people regardless of pre-existing conditions or any other issues, and more healthy people have the choice of opting out while still receiving basic emergency care, then insurers have two choices: raise rates through the roof or go out of business. The insurance business, by nature, is only profitable if insurers can either have the option of denying coverage to high-risk people or charging them much higher rates to offset the risk. So if they cannot offset higher risks by adding a significant number of guaranteed, low-risk customers, then it’s back to the drawing board. Health care reformers will then be left with pushing for some form of single-payer plan, which is another way of saying that we will go right back to the increasingly expensive, hodge-podge of a “system” that we have had for decades.

Second, this case makes it very clear that the top legal minds of the land cannot agree with one another about the constitutionality of this law. So either the Constitution is vague on this issue or a significant percentage of seemingly smart, educated people are actually morons. As with many issues, it is clear to me that the former is more likely than the latter. So if these brilliant legal minds have difficulty coming to any agreement, then when in doubt, we should go with the democratic process. President Obama ran largely on the health care issue, and he managed to push a plan through his Democratic-majority Congress. Some like the plan and some don’t, so if enough people decide that it does more harm than good, then they can fight to vote people in who vow get rid of it. In a country that claims to be a democracy, this seems to make more sense than letting nine sharply divided people decide, with the fate of this (and many other bills) coming down to the one guy who most often ponders legal issues rather than applying one of the generic ideologies to the situation.

People on each side of the ideological spectrum often like to accuse the other of legislating from the bench. The truth is that both sides do this when they have the chance. It’s important to keep in mind, however, that the principle of judicial review is not expressly stated in the Constitution. Instead, it has evolved from legal precedents tracing back more than two hundred years. Remarkably, the Supreme Court way back when managed to establish a precedent that had the practical result of strengthening its own power. And like the Supreme Court way back when, the Supreme Court today does not simply apply the Constitution to modern situations and let it do the thinking for them. The Constitution is merely a framework. It cannot provide all the answers to certain modern questions that the original framers could hardly have imagined. Health care in 1787 was relatively cheap (and crappy). So I doubt that any of the Founding Fathers ever thought for a moment about the most just and efficient way to provide people with health insurance. So if you dump this decision into the lap of Supreme Court justices, they have no choice but to legislate from the bench. And the rest of us then waive our right to follow a democratic process.


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    • Freeway Flyer profile imageAUTHOR

      Paul Swendson 

      8 years ago


      I know, but the term democracy over time has drifted away from its literal meaning. When people use the term now, they are generally referring to a system of government in which leaders are elected. But technically, as you point out, this is a republic. And also as you point out, the Electoral College is a great example of how our Founding Fathers did not trust the idea of democracy. This can also be seen with the Supreme Court and the original system for electing Senators via state legislatures.

      This time, it's a progressive law that might be struck down. In the future, it could be a conservative one. I just think that too much legislating is being done by courts these days. This was not an attempt to make a case for the health care reform bill or for which side of the political spectrum is more "constitutional." The Constitution, after all, does not provide clear guidelines on many modern issues. And since the concept of health insurance never entered the minds of the Founding Fathers, I care more about coming up with a health care system that makes sense than one that is Constitutional, whatever the hell that word means.

    • cprice75 profile image

      Chris Price 

      8 years ago from USA

      If the founders had wanted an extremely weak central government, the Articles of Confederation were their document. They saw that it was not feasible, so they opted for the much stronger Constitution, which greatly enhanced the power of the national government. In the debate between the Jeffersonians and the Hamiltonians, the Hamiltonians have controlled the country almost from the ratification of the Constitution.

    • Freeway Flyer profile imageAUTHOR

      Paul Swendson 

      8 years ago


      You would still have a small number of people making really big decisions. Only in the case of the jury, they would be far less qualified than the legal experts that are (supposedly) on our Supreme Court.

      Dr Billy Kidd,

      It will be interesting to see the reaction when aspects of the bill that have already been implemented disappear. I have heard more than once that opponents of the bill in general often support many specific provisions of it, particularly the consumer protections and expansion of coverage.

      WannaB Writer,

      Your criticisms could be levied against many pieces of legislation. In fact, they could be levied against the day-to-day operations of Congress in general. Representative democracy, in fact, is flawed on all sorts of levels. But in principle, most Americans prefer it to a government dominated by a small number of elites.

      It's also important to keep in mind that we already have corporate bureaucrats making decisions about the quality of our health care. And don't get me started about the reconciliation process. As far as I'm concerned, the tradition of the filibuster should have never came into being in the first place. The Constitution says that in the Senate you just need a simple majority to pass bills, not this 60-vote garbage. And I'm not saying this in support of the health care bill, but as a general principle.

      And finally, I would question the notion that the Constitution was created to limit federal power. Here is another hub explaining what I mean:

    • WannaB Writer profile image

      Barbara Radisavljevic 

      8 years ago from Templeton, CA

      I agree with you that the justices have more power than they ought to have. I'd disagree that the Congress who passed this monstrosity without reading it were truly representing the people back home who elected them. They had to be bribed, told their states could get waivers, and promised that certain provisions would be in the bill that seem not to be there now. Without all this arm twisting and backroom deals, and the unprecedented use of the reconciliation process, the law would not have passed. Not even the justices want to read all 2,700 pages of it to make their ruling. What if no one reads it and the bureaucrats who will have the power to determine the quality of our health care do as they please because no one wants to read the entire bill to prove they can't. It's very sad that the justices who are supposed to be the legal experts in the country can't see that the Constitution was designed to limit congressional power. It's a shame that a justice who should have recused herself did not.

    • Dr Billy Kidd profile image

      Dr Billy Kidd 

      8 years ago from Sydney, Australia

      It's more than legislating from the bench. It running against history--taking the U.S. backwards. The eventual 5-4 rulings in June will take U.S. back to the days of discrimination against women. The confusion caused by the rejection of the bill will result in lots of employers duopping healthcare altogether. All your students will sure be out of luck!

    • christopheranton profile image

      Christopher Antony Meade 

      8 years ago from Gillingham Kent. United Kingdom

      Here is a suggestion, because we are starting to get the same problem over here in Britain, where judges are starting to make the law. Why not have a jury system making the decisions in the Supreme Court? Let the judges act only in an expert advisory capacity. That would make things more democratic.

    • Freeway Flyer profile imageAUTHOR

      Paul Swendson 

      8 years ago

      Yep, doctors back then mostly did a good job of finishing people off. At that time, the uninsured, if there was such a thing as health insurance, may have had better health outcomes.

    • cprice75 profile image

      Chris Price 

      8 years ago from USA

      Good points. As you mention, health care in the 1780s wasn't exactly on the radar for the Founders. Here was the extent of health care: you have a cold, take three of these (leeches) and call me in the morning. Stomach virus? Leeches. Cancer? Leeches. Heart trouble? Leeches. Diabetes? Leeches. I think the point is clear. Not going to a doctor could kill you. Going to the doctor could kill you because the doctors didn't exactly know much, other than that leeches were supposed to suck the bad blood out. Now it seems that the only leeches are the middle men who profit on the illnesses and miseries of others.


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