This Week’s Challenge

I was on Facebook a few weeks ago when a friend of mine who works for a certain Democratic Colorado congressman posted on her status: "We did it!" It quickly became clear to me that she was talking about the House of Representatives passing healthcare reform. Of course, being the informed, opinionated and intelligent  citizen that I am, I promptly posted a comment directly under hers stating something to the affect that the Easter Bunny is real.

The fact is that the Democratic Party has accomplished nothing until a certain 9 very powerful individuals have had their say; these individuals are the United States Supreme Court Justices.

On March 23, 2010, President Obama signed the new healthcare reform legislation into law. Needless to say, this bill was and is still largely unpopular with many American people. Just minutes after President Obama had set down the pen which he used to sign the law, Attorneys General from 13 states rushed to the courthouses to file suits against the new law. These lawsuits will inevitably hit the Supreme Court within the next year, which is exactly what these Attorneys General are shooting for.

As most are already aware, the United States Supreme Court has the power to strike down any law it deems unconstitutional. The challenge to Congress' health care law states that the bill violates the 10th Amendment of the Constitution because government has no authority beyond powers granted to it by the Constitution to force states to carry out its provisions without reimbursing them for costs. A violation of the Congress's Commerce Clause has also been asserted. 

When these lawsuits hit the Supreme Court, they will go before the review of 9 Supreme Court Justices, all of whom were appointed by Presidents as far back as Gerald Ford (until Justice Stevens retires, of course). If these Justices decide that healthcare legislation is indeed unconstitutional, the law will be worth as much as a package of Charmin Double Roll on a Wal-Mart shelf.

But will the Supreme Court Justices rule this law unconstitutional? To answer this question, I recently interviewed UCCS Political Science Professor and author of "Complex Justice: The Case of Missouri v. Jenkins," Joshua Dunn to get his take on the situation in Washington:

In Article One of the Constitution, Congress has enumerated powers. The idea is that if their action does not fall under one of those enumerated powers, then Congress has exceeded its constitutional authority. If healthcare legislation exceeds Congress's authority, then it's unconstitutional.

Okay, so that's a pretty basic rundown of the framework from which the justices will work. What are the chances the current court views this law as outside of the enumerated authority of Congress?

I think that these lawsuits are unlikely to succeed but they have a better chance than most people give them credit for, for two reasons: One, this legislation is very unpopular, so concerns over political backlash won't weigh heavily on the court. Two, it will likely come down to Justice Kennedy who is quite mercurial and unpredictable, but who does seem to dislike it when the government intrudes too far into the individual choices of citizens.

So it looks like, in the end, we'll have to see what the justices have to say about the law. This fight is far from over, as polls continue to show most Americans against this new law, and the 2010 elections will likely attest to that with widespread Republican victory. Still, only one thing is certain: the United States Supreme Court will soon have its say on this matter. Until that time, keep knocking down those impetuous Facebook claims.