Erelong, perhaps before this is published, the U. S. Supreme Court will hand down its decision on the fate of the Patient Protection and Affordable Care Act, known unlovingly in some quarters as "Obamacare."
The only bipartisanship recorded in the act's passage was the 34 Democrats who joined the Republicans in voting nay.
Unpopular from its inception and rushed through Congress by the use of sops (the Nebraska Compromise and the Louisiana Purchase), intimidation and by altering Senate procedures to reflect passage by majority vote, the Affordable Care Act remains something of an albatross. A poll taken in March by Washington Post/ABC poll shows 52 percent against and 41 percent in favor.
The arguments were heard by the Supreme Court in March, and the consequences of the ruling on the constitutionality of all or portions of the Affordable Care Act concern Democrats and Republicans alike. The question yet to be answered is: How will it affect the November presidential election?
The court has several options — it can declare the entire law to be constitutional, it can toss the entire statute or it can allow portions of the lawto stand. The court can also decided not to rule until after the government imposes its first penalties for noncompliance, which are due in 2015 or so, but this option is not considered to be likely.
The primary point of contention in the health care statute is the constitutionality of the individual mandate, which requires people to purchase health insurance or pay a fine.
Proponents of the health care law argue that it falls within the enumerated powers of the Commerce Clause to regulate commerce with foreign nations and among the several states. The opponents are equally adamant that forcing citizens to purchase a product cedes to the government an unlimited power of coercion — neither envisioned nor permitted by the Constitution.
Be that as it may, the real issue here should not be whether the court will overturn or sustain all or portions of the Affordable Care Act. It is also not about the attempts of the president, Senate Judiciary Chairman Patrick Leahy, D-Vt., and other left-wingers to intimidate and influence Chief Justic John Roberts' vote.
Whatever the court's decision, the most disturbing aspect is the almost certainty that the vote will be divided 5 to 4, along political and ideological lines of liberal versus conservative justices. Far too many of the court's most controversial decisions have been decided thus – a circumstance that should be cause for alarm in that politics and ideologies are being substituted for the interpretation of laws.
Biographical information discloses that of the nine current justices, five have Harvard law degrees, three have Yale law degrees and one, Ruth Bader Ginsburg, attended Harvard Law School and received her LLB from Columbia University. I don't believe anyone will deny that these Ivy League schools are the top of the line in the development of the nation's finest legal minds.
Why then do we have this division along party lines in those politically controversial issues when the chief justice and his associate justices attended the same law schools, studied under similar curricula, and, presumably, acquired identical jurisprudential training?
Regardless of the legislative majorities involved in its passage, a statute in question is either constitutional, or it is not.
I am not sure how we might correct judicial activity more reminiscent of political football than of serious deliberation. We can decry "judicial activism" until the cows come home, but so long as presidents and political parties nominate judicial candidates of liberal or conservative bent rather than nominate candidates based on judicial integrity, this conundrum will prevail.
In reviewing the Constitution to ascertain the qualifications required of the judiciary, one finds that there are none listed. Not only is there no requirement that they be lawyers, Article III, Section 1 states, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
Perhaps the Founding Fathers were trying to make a point in spelling out in considerable detail the qualifications for the members of Congress and the president while ignoring those of the judicial branch. Politics and the judiciary were never meant to share the same bed — the people deserve that much.
J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via email at JKarlUSMC@aol.com. Questions? Contact news editor Laura Johnston.