Obamacare's constitutionality ruling coming this month

Jun 8 2012 - 5:57pm


E. Kent Winward
E. Kent Winward

Sometime this month, the U.S. Supreme Court of the United States is going to rule on the constitutionality of the Affordable Care Act, Obamacare for the non-literal.

The decision will rest on Article I, Section 8 of the Constitution, which outlines the powers of Congress.

Supreme Court-watching for the attorney has all the excitement of those free-for-all brawls at the end of a professional wrestling match -- lots of action, the roles of the participants well-delineated and the only surprises come when someone switches sides at the last minute for no apparent reason. We yell and scream from the sidelines and, after the folding chairs are put away, get ready for the next Supreme Smackdown.

One such case came in 2005. Diane Monson was a California resident with a prescription for medicinal marijuana. She had six plants she grew for her own use. California had passed a law allowing medicinal marijuana and she was in full compliance with state law when the federal Drug Enforcement Agency came knocking. After a three- hour standoff, the federal agents destroyed her six plants.

Monson and another medical marijuana user sued the federal government, claiming that Congress had no right to regulate six pot plants that were legal in California.

The argument was Congress under the Constitution only has the power to regulate commerce among the states. The laws regulating controlled substances on a federal level were passed by Congress relying on this Constitutional power. The case became known as Gonzales v. Raich.

The Supreme Court divided pretty much along ideological lines. Liberals voted for expansive federal power. Conservatives voted to restrict the federal power. If you don't follow the Supreme Court, there is a power duo -- Antonin Scalia and Clarence Thomas -- who almost always vote together, but not in Gonzales v. Raich.

Scalia took a chair to Thomas and bashed it over his conservative head with his concurring opinion that states can't control the difference between legal and illegal uses of a drug and it is impossible to distinguish intrastate (six pot plants grown for personal use) from marijuana grown to be distributed among the states. Based on the inability to make this distinction, Scalia and the majority ruled that Congress had full constitutional authority to ban personal pot.

Scalia's ruling makes the upcoming decision on health care all the more entertaining, as the challenge to the health care law is essentially the same challenge that was made to the marijuana law -- does Congress have power under the Commerce Clause to require the purchase of health insurance?

Scalia appears to be one of the most vocal opponents of the health care law, based on his questioning during oral arguments. How Scalia squares his expansive Commerce Clause interpretation for marijuana with his expected decision on the health care law will be an intriguing linguistic pretzel, I'm sure.

Finally, if the health care law is declared unconstitutional, it may be a case for conservatives of needing to be careful what they wish for. The Constitution does other things besides limit Congress's power to pass laws regulating interstate commerce.

As set forth in the preamble, the Constitution is designed to "promote the general welfare," and in Article I, Section 8, Congress is given the power to pass laws to provide for the "general welfare" of the country. This was the power used to provide Medicare and Social Security to our older citizens, not the Commerce Clause.

If the Affordable Care Act is declared unconstitutional, I wonder how many more citizens will need to die from the lack of insurance coverage before Congress decides that it is in the general welfare of our country to ensure Medicare for everyone.

And this is the problem with Supreme Court watching. Unlike professional wrestling, people can really be hurt by their decisions.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.

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