Part 1

Determining whether the unpopular Health Care Reform Bill is just (reasonable, right) in this case may be easier than determining if it is jurisprudential, supported by case law.  Another five states have joined in lawsuits against the federal government, making a total of eighteen states.  In some of the newer cases, the Attorneys General have refused to bring suit, but their states will still proceed.  How will legal precedent figure into the courts' decisions?  A larger question is how heavily the courts will consider the philosophy of American Constitutional law that has historically upheld the Constitution as written. Recent cases give us some hope that the Supreme Court will defend the "strict constructionist" interpretation of the Constitution.

For starters, most people realize that our Congress is made up of representatives of "we, the people."  We expect our elected representatives to vote in responsible ways that will help their constituencies.  Few of us would like them to ram through a bill that the majority of people do not want.  This would not be representative of the people.  Surely, the philosophical argument that the bill was passed against the will of the people will have some bearing on the opinions of the justices.

The courts will be faced with a very unusual case.  No Republicans supported the bill, and a majority of Americans feel it is a mistake.  Never before has such division occurred on legislation of this magnitude.  Social Security and Medicare were both big government programs that received over fifty percent of support from both Democrats and Republicans.  But with the current health care program, which would cause a far greater tax burden and encroaching government regulations, not a single Republican representative supported it  Yet the Democrat leadership forced its will and in the end bought the necessary votes.

Something is very wrong here.  According to the philosophy of constitutional law (if not the letter of the law), a bill forced through with so little support of the American people, using every imaginable arm-twisting means and back room deal, is wrong.  Why?  It is because this fundamentally goes against ideals of freedom and the rule of law "by the people."  The Constitution specifically protects both states' rights and the people's rights.

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. – Amendment X of the Constitution

This, in legal terms, is known as the enumerated powers of Congress.  If it is a power not delegated (mentioned or given in the Constitution to federal government), then it is prohibited and given to the states individually and to the people.  If it is a delegated power mentioned, then it is given to the federal government.  A bill that is so unpopular with the people would hardly pass a test of giving power to the people.  Health care regulation has traditionally been within the province of each individual state, such as Kansas or Massachusetts, to regulate.  They license physicians, nurses, and other health care professionals and oversee insurance regulations.  Because managing health care or insurance is not in the Constitution, this area has been considered intrastate, not interstate commerce or care.  Therefore, the courts have been hesitant to give more power to the Congress and federal bureaucracies to control health care administration or insurance—properly, I believe.

People are beginning to have second thoughts about the "real change you can believe in" that President Obama promised during his campaign.  As they realize how expansive and expensive are the health care legislation and other programs such as TARP, the Stimulus, the takeover of banks, the student loan program, and General Motors, they are having serious second thoughts about more government growth.  Real concerns over their finances, their freedoms, and their future are beginning to grip most people as they realize the massive and intrusive implications of this federal power grab.