ND Expert: Much at stake as Supreme Court considers 'Obamacare'

by Shannon Chapla

Rick Garnett ND Expert

When the Supreme Court hears arguments next week on the 2-year-old U.S. health care overhaul law (Affordable Care Act), much commentary likely will focus on the political implications of the court’s predicted ruling or on the “rock-star status” of many of the advocates, says University of Notre Dame Law Professor Richard Garnett.

It’s important that “We the People” do not lose sight of the fundamental and foundational “big picture” questions of the case commonly referred to as “Obamacare,” according to Garnett, a past clerk to former Chief Justice William H. Rehnquist and a frequent commentator on the Supreme Court.

“It is clear,” he says, “that, for better or worse, the court has, during the last 70 years or so, scaled back its role in enforcing the limits of Congress’ powers to tax, spend and regulate. And, many experts and observers believe that the court’s precedents weigh in favor of deferring to Congress here too. Nevertheless, it is equally clear and very important that our Constitution does not give the national government a general power to regulate; instead, it only authorizes Congress to exercise certain powers, within certain limits. Congress’ power is expansive, and the limits on that power can be difficult to identify. But it is the duty of the court, even in high-profile cases dealing with major legislation, to take seriously and preserve the structure of our Constitution and its bedrock features of separate, divided, limited powers.”

Garnett says the justices could decide not to reach the questions about Congress’ power to require the purchase of insurance, and even if they do invalidate the insurance mandate, they will have to decide how much of the Affordable Care Act falls with it.

“However the court rules, and whether or not the ruling is sweeping or relatively narrow,” Garnett says, “we should pay close attention to what the justices say about the limited nature of federal regulatory power and the role of the court in reviewing Congress’ actions. This case is about more than the ‘Obamacare’ legislation. It is, inescapably, about the first principles of our constitutional experiment. Our predecessors ratified a Constitution that created a new government that was supposed to be effective, but limited; powerful, but not all-powerful. Just as the Constitution permits many bad policies, it does not authorize all policies that passing majorities believe to be good. Even if the justices uphold the health-insurance mandate, look for them to remind us that the boundaries on federal regulatory authority remain, and matter."

Contact: Richard Garnett, 574-631-6981, rgarnett@nd.edu