'Courting' Disaster

Posted: Mar 20, 2012 12:01 AM
'Courting' Disaster

The Supreme Court of the United States, whose inveterate habit is telling Americans what's good for them, will do the honors once more after weighing the merits and demerits of the Patient Protection and Affordable Care Act, generally and ominously known as Obamacare.

Formal arguments before the court, commencing March 26, will last three days. In the end, five or six justices will advise us how much power the federal government may exercise over our method of providing health care and how we're to pay for it. Assuming, we ever manage to pay for it.

Forty-nine percent of Americans, according to a new poll by The Hill, the Washington, D. C., political newspaper, expect the justices to strike down the law -- an enactment long seen as vulnerable on account of its big brotherly order that we all buy health insurance. By contrast, an American Bar Association survey of legal "experts" says 85 percent expect the court to greenlight the law.

One sees, in either case, the extent of our dependence on the very federal judges who Thomas Jefferson considered a "subtle corps of sappers and miners constantly working under the ground to undermine the foundations of our confederated fabric."

How has it come to this? Through habit as much as anything else. The more law we have -- and we have more now than Jefferson at his gloomiest could have foreseen -- the more disputes make their way to the Supreme Court for final resolution. Such as the one over "how dare Congress tell me I have to buy health insurance?!"

A similar dispute erupted nearly 80 years ago, at the start of the big government era. Congress, in the Social Security Act, ordered employers and employees alike to cough up, year after year and for all time, a payroll exaction designed to ease the burdens of the elderly. A Supreme Court, startled by President Roosevelt's attacks on it for disallowing other pieces of New Deal legislation to change course, (Helvering et al. vs. Davis) decided the Social Security tax was fine and dandy -- not for us to reason why, etc., etc.

That's how these things get started. Let this or that abridgement of rights pass judicial muster and you end up ... where? Maybe where we are now, waiting for today's high court to decide whether it's OK for Congress to reach still more deeply into our pockets, for reasons of national policy.

Which brings to mind -- surprise, surprise -- the 2012 elections. It matters who gets to appoint our federal judges and justices. It matters profoundly. The only reason opponents of federal aggrandizement have any hope of relief from Obamacare is the presence on the high court of four, maybe five, depending on how you count justices of conservative bent, all appointed by Republican presidents.

The justices in question are Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy, Antonin Scalia, and Samuel Alito Jr. All will give the time of day, and generally much more than that, to lawyers advocating the principle of explicit or implicit limits to the exercise of federal power. The same five will listen with some earnestness to arguments that Congress can't pass just any old law weakening the already frail balance of powers upon which our liberties depend.

Barack Obama's two Supreme Court appointees -- Sonia Sotomayor and Elena Kagan -- are smart people, but neither registers visible alarm over governmental hyperactivity. Maybe, as the ABA survey suggests, a "conservative" or two will defect, giving the administration a narrow victory. I hope not. In any case, those varied "conservatives," now walloping each other with baseball bats and bungstarters, might benefit from imagining the consequence of throwing the election by tearing the GOP apart.

How about four more years of judicial appointments by the president who thinks it's a great idea to make every American buy health insurance? It's far from the only reason to call off this ineffably stupid Republican family feud, but I suggest that few stronger reasons will come our way.