I forlængelse af min kommentar (i kommentar-sektionen her) om, hvorvidt Obamas sundhedsreform i virkeligheden måske er forfatningsstridig, er det vigtigt at være opmærksom på USA-forfatningens centrale men oversete 10. tillæg:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
I den forbindelse har min gamle ven gennem snart 23 år, Randy Barnett (professor i forfatningsret ved Georgetown University og næppe én, der kan ses som værende ude i et “konservativt” eller partipolitisk ærinde), argumenteret for, at sundhedsreformen meget vel kan være forfatningsstridig. I et indlæg forleden i Washington Post skriver han bl.a.:
“Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance. But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds. If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.
At der kommer en større sag ud af det, og at sidste ord ikke er sagt, er klart. Spørgsmålet er så blot–hvis Barnett m.fl. har ret–hvorvidt forbundshøjesteretten vil have mod nok til at erklære en så stor lov forfatningsstridig? Historien taler imod det, og det forudser Barnetts kollega og med-blogger, Orin Kerr, også. Efter min mening desværre.
Barnett er mere optimistisk:
“[Although some] of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.
You might have heard of it: Bush v. Gore.”