A Lesson in Civics

The long-awaited decision is finally here. At 21,000 words and 193 pages in PDF format, when printed, The Decision may become the longest ever. Even The Decision’s citation is so long as to be unwieldy. It is the Supreme Court’s June 28, 2012, decision on the Affordable Care Act.

The Decision directly affects 17% of the GDP and the insurance status of 30 million Americans, so such length might seem appropriate. But the Supreme Court doesn’t consider those impacts. In fact, it explicitly avoids evaluating them.

According to The Decision, "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

The Decision is not a careful weighing of what will provide the best medical care, the greatest access to health care, or the fairest distributive justice. Seeking out that wisdom is the job of a legislature. The Supreme Court focused solely on what the federal government could and could not do constitutionally.

To be understood properly, The Decision should be read as a civics lesson. History provides the necessary context. As descendants of minority groups that were outcasts from Europe, the Founding Fathers were worried about government being too powerful. One of the great characteristics of the U.S. Constitution and American jurisprudence is its system of checks and balances, in which the tyranny of the majority through the legislature is tempered by a judiciary upholding constitutional liberties that protect the individual members of minorities. A majority vote does not always trump the minority’s interests.

As a further tempering of pure democracy, a representative government acknowledges that the popular vote can sometimes be misguided. Rather than using democratic town hall meetings, all legislation is created in a deliberative process with expert testimony. That design anticipates that experienced, devoted elected public servants will be wiser and more stable than public opinion polls. In the long run, public opinion will still influence an elected government. But the Constitution even created different terms of office – 2 years in the House, 6 years in the Senate – to provide a buffer against rapid changes in public opinion. For major changes, a two-thirds supermajority vote must be ratified by three-quarters of the states to alter the Constitution.

Limiting the power of government is yet another way of allowing minorities to live their lives according to their own values at a finite penalty for nonconformity. The federal government’s powers are specifically enumerated by the court: "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power."

Ultimately, the justices ruled 5-4 that Congress could not establish the individual mandate with a penalty fee under the Interstate Commerce Clause. Chief Justice Roberts asserted, however, that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." He ruled that Congress could (and did) properly create a tax on individuals without insurance. So by that contorted 5-4 vote, the ACA’s individual mandate as a tax increase is upheld as constitutional.

The second key part of The Decision addresses the expansion of Medicaid. The ACA gives states the option of expanding health care coverage to millions more people under Medicaid. The ACA has the federal government reimbursing 100% of those increased program costs, at least initially until the states are addicted to the new funds. For that reason, many state governments have vowed not to expand coverage. The Supreme Court ruled that while Congress can incentivize the expansion, Congress may not penalize uncooperative states by suddenly revoking their current level of Medicaid funding, which accounts for 10% of all state government spending.

According to the court, "State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power."

This is not the last word on the ACA, also called Obamacare. The elections this fall offer one more opportunity for the public to express its opinion on the expansion. Democracy isn’t the sole means of setting policy. While elections are based on "one person, one vote," an alternative influence is the economic reality in which people vote with their money, "one dollar, one vote."

In the long run, I believe justice is best served when the power to influence decisions is proportional to the degree to which a stakeholder is impacted by the decision. There can be cogent and rational arguments for separating these two in the short term, but typically that separation results in more severe consequences in the long term. Consider, for instance, the current problems with sovereign debt in Europe and the United States.

So despite parts of it being found unconstitutional, for now the remainder of the ACA is the law of the land. The Supremes have spoken.

Dr. Powell practices as a hospitalist at SSM Cardinal Glennon Children’s Medical Center in St. Louis. He is associate professor of pediatrics at Saint Louis University. He is also listserv moderator for the AAP Section on Hospital Medicine and is a member of the Law and Bioethics Affinity Group of the American Society for Bioethics and Humanities.

The long-awaited decision is finally here. At 21,000 words and 193 pages in PDF format, when printed, The Decision may become the longest ever. Even The Decision’s citation is so long as to be unwieldy. It is the Supreme Court’s June 28, 2012, decision on the Affordable Care Act.

The Decision directly affects 17% of the GDP and the insurance status of 30 million Americans, so such length might seem appropriate. But the Supreme Court doesn’t consider those impacts. In fact, it explicitly avoids evaluating them.

According to The Decision, "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

The Decision is not a careful weighing of what will provide the best medical care, the greatest access to health care, or the fairest distributive justice. Seeking out that wisdom is the job of a legislature. The Supreme Court focused solely on what the federal government could and could not do constitutionally.

To be understood properly, The Decision should be read as a civics lesson. History provides the necessary context. As descendants of minority groups that were outcasts from Europe, the Founding Fathers were worried about government being too powerful. One of the great characteristics of the U.S. Constitution and American jurisprudence is its system of checks and balances, in which the tyranny of the majority through the legislature is tempered by a judiciary upholding constitutional liberties that protect the individual members of minorities. A majority vote does not always trump the minority’s interests.

As a further tempering of pure democracy, a representative government acknowledges that the popular vote can sometimes be misguided. Rather than using democratic town hall meetings, all legislation is created in a deliberative process with expert testimony. That design anticipates that experienced, devoted elected public servants will be wiser and more stable than public opinion polls. In the long run, public opinion will still influence an elected government. But the Constitution even created different terms of office – 2 years in the House, 6 years in the Senate – to provide a buffer against rapid changes in public opinion. For major changes, a two-thirds supermajority vote must be ratified by three-quarters of the states to alter the Constitution.

Limiting the power of government is yet another way of allowing minorities to live their lives according to their own values at a finite penalty for nonconformity. The federal government’s powers are specifically enumerated by the court: "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power."

Ultimately, the justices ruled 5-4 that Congress could not establish the individual mandate with a penalty fee under the Interstate Commerce Clause. Chief Justice Roberts asserted, however, that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." He ruled that Congress could (and did) properly create a tax on individuals without insurance. So by that contorted 5-4 vote, the ACA’s individual mandate as a tax increase is upheld as constitutional.

The second key part of The Decision addresses the expansion of Medicaid. The ACA gives states the option of expanding health care coverage to millions more people under Medicaid. The ACA has the federal government reimbursing 100% of those increased program costs, at least initially until the states are addicted to the new funds. For that reason, many state governments have vowed not to expand coverage. The Supreme Court ruled that while Congress can incentivize the expansion, Congress may not penalize uncooperative states by suddenly revoking their current level of Medicaid funding, which accounts for 10% of all state government spending.

According to the court, "State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power."

This is not the last word on the ACA, also called Obamacare. The elections this fall offer one more opportunity for the public to express its opinion on the expansion. Democracy isn’t the sole means of setting policy. While elections are based on "one person, one vote," an alternative influence is the economic reality in which people vote with their money, "one dollar, one vote."

In the long run, I believe justice is best served when the power to influence decisions is proportional to the degree to which a stakeholder is impacted by the decision. There can be cogent and rational arguments for separating these two in the short term, but typically that separation results in more severe consequences in the long term. Consider, for instance, the current problems with sovereign debt in Europe and the United States.

So despite parts of it being found unconstitutional, for now the remainder of the ACA is the law of the land. The Supremes have spoken.

Dr. Powell practices as a hospitalist at SSM Cardinal Glennon Children’s Medical Center in St. Louis. He is associate professor of pediatrics at Saint Louis University. He is also listserv moderator for the AAP Section on Hospital Medicine and is a member of the Law and Bioethics Affinity Group of the American Society for Bioethics and Humanities.

The long-awaited decision is finally here. At 21,000 words and 193 pages in PDF format, when printed, The Decision may become the longest ever. Even The Decision’s citation is so long as to be unwieldy. It is the Supreme Court’s June 28, 2012, decision on the Affordable Care Act.

The Decision directly affects 17% of the GDP and the insurance status of 30 million Americans, so such length might seem appropriate. But the Supreme Court doesn’t consider those impacts. In fact, it explicitly avoids evaluating them.

According to The Decision, "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

The Decision is not a careful weighing of what will provide the best medical care, the greatest access to health care, or the fairest distributive justice. Seeking out that wisdom is the job of a legislature. The Supreme Court focused solely on what the federal government could and could not do constitutionally.

To be understood properly, The Decision should be read as a civics lesson. History provides the necessary context. As descendants of minority groups that were outcasts from Europe, the Founding Fathers were worried about government being too powerful. One of the great characteristics of the U.S. Constitution and American jurisprudence is its system of checks and balances, in which the tyranny of the majority through the legislature is tempered by a judiciary upholding constitutional liberties that protect the individual members of minorities. A majority vote does not always trump the minority’s interests.

As a further tempering of pure democracy, a representative government acknowledges that the popular vote can sometimes be misguided. Rather than using democratic town hall meetings, all legislation is created in a deliberative process with expert testimony. That design anticipates that experienced, devoted elected public servants will be wiser and more stable than public opinion polls. In the long run, public opinion will still influence an elected government. But the Constitution even created different terms of office – 2 years in the House, 6 years in the Senate – to provide a buffer against rapid changes in public opinion. For major changes, a two-thirds supermajority vote must be ratified by three-quarters of the states to alter the Constitution.

Limiting the power of government is yet another way of allowing minorities to live their lives according to their own values at a finite penalty for nonconformity. The federal government’s powers are specifically enumerated by the court: "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power."

Ultimately, the justices ruled 5-4 that Congress could not establish the individual mandate with a penalty fee under the Interstate Commerce Clause. Chief Justice Roberts asserted, however, that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." He ruled that Congress could (and did) properly create a tax on individuals without insurance. So by that contorted 5-4 vote, the ACA’s individual mandate as a tax increase is upheld as constitutional.

The second key part of The Decision addresses the expansion of Medicaid. The ACA gives states the option of expanding health care coverage to millions more people under Medicaid. The ACA has the federal government reimbursing 100% of those increased program costs, at least initially until the states are addicted to the new funds. For that reason, many state governments have vowed not to expand coverage. The Supreme Court ruled that while Congress can incentivize the expansion, Congress may not penalize uncooperative states by suddenly revoking their current level of Medicaid funding, which accounts for 10% of all state government spending.

According to the court, "State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power."

This is not the last word on the ACA, also called Obamacare. The elections this fall offer one more opportunity for the public to express its opinion on the expansion. Democracy isn’t the sole means of setting policy. While elections are based on "one person, one vote," an alternative influence is the economic reality in which people vote with their money, "one dollar, one vote."

In the long run, I believe justice is best served when the power to influence decisions is proportional to the degree to which a stakeholder is impacted by the decision. There can be cogent and rational arguments for separating these two in the short term, but typically that separation results in more severe consequences in the long term. Consider, for instance, the current problems with sovereign debt in Europe and the United States.

So despite parts of it being found unconstitutional, for now the remainder of the ACA is the law of the land. The Supremes have spoken.

Dr. Powell practices as a hospitalist at SSM Cardinal Glennon Children’s Medical Center in St. Louis. He is associate professor of pediatrics at Saint Louis University. He is also listserv moderator for the AAP Section on Hospital Medicine and is a member of the Law and Bioethics Affinity Group of the American Society for Bioethics and Humanities.