Garten: Supreme Court justices try on their activist robes

The Patient Protection and Affordable Care Act, also known as “Obamacare,” is now in the hands of the Supreme Court, as the federal lawsuit filed on behalf of the governors and/or attorney generals of 26 states has made its way to that esteemed body, and briefing and argument is now concluded.

Only time will tell when a decision will be issued, and what that opinion of the Court will ultimately be.

Few cases taken up by the Supreme Court in the last few decades represent such a significant political football as this, as the Court has taken a pass in recent times on the opportunity to overrule Roe v. Wade, which confers the Constitutional right of a woman to choose abortion; the exclusionary rule, which excludes evidence of guilt in a criminal trial where a defendant’s Constitutional rights have been violated; and any number of other purportedly liberal decisions of the Warren Court era that many would have guessed would long since have been cast aside by the current Court.

But now, we have Department of Health and Human Services v. Florida, which seeks to gut the primary political agenda of President Obama by having his pet legislative enactment, which would undertake to provide for health care for everyone, declared unconstitutional.

Certainly, the Supremes have cannot be accused of taking a dodge in this case.

At issue, is the Constitutionality of a part of the statutory scheme known as the individual mandate, which requires virtually everyone to secure health insurance, or pay a penalty.

The states challenging the Act contend that the individual mandate is an unconstitutional exercise of government power, forcing everyone to pay for health insurance.

The Department of Health and Human Services’ position is that there is nothing short of a health care crisis in America, that requires a drastic revamping of how services are allocated and paid for, and that the Act represents legitimate statutory reform to address and hopefully significantly resolve this crisis.

A number of tidbits of interest are raised by this case.

According to statistical data cited by the Department, some 50 million Americans lacked health insurance in 2009, seriously impairing their access to health care.

In 2008, the uninsured did not pay for 63 percent of their health care costs

The average bill for a hospital stay for an uninsured person in 2008 was $22,000, which may explain why a large portion of their costs went unpaid for.

These unpaid expenses were, of course, absorbed by those who could pay, largely those with health insurance.

The idea behind the Act is to allocate both the cost and availability of health care services in a more equitable, logical way, although it would seem difficult at this point to determine if the Act would effectively do that.

One part of that scheme is the individual mandate which is now being subjected to Constitutional scrutiny.

The case has generated a lot of interest, both for and against the Act.

In Supreme Court cases, interested parties that aren’t actually parties to the case are, nonetheless, allowed to file briefs in support of one side or the other, as “friends of the court,” called “amicus” briefs. In this case, some 74 amicus briefs have been filed, some on behalf of individual parties, and some on behalf of a consortium of interested parties that went together to file.

Amicus briefs in support of the Act have been filed on behalf of parties including the AARP, the American Cancer Society, the AFLCIO, the American Hospital Association, and the American Academy of Pediatrics, just to name a few.

Amicus briefs against the Act were filed on behalf of the American Catholic Lawyers Association, the American Center for Law and Justice, the Christian Medical and Dental Associations, Association of American Physicians and Surgeons, the Cato Institute, the Missouri attorney general and a host of others.

One thing appears certain:  almost everyone agrees that there is a problem with health care in America.  

It just seems that not everyone agrees on how to go about solving it, or perhaps more accurately, nobody wants their political adversaries to get the credit for doing so.

A bit of irony about this case is that traditionally conservative forces are urging the Court to fulfill the role of “activist judges” by striking down a Congressional legislative enactment, signed into law by the President, on Constitutional grounds.

I hope everyone remembers this when the same parties use the “activist judge” label to try to slander a Court they may disagree with in the future.