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Constitutional principles are required to save American medicine

By Richard E. Ralston
web posted July 13, 2015

The ruling of the U.S. Supreme Court in King v. Burwell was only incidentally about Obamacare--although it does threaten medical care. It was about whether the U.S. Constitution and the ingenious separation of powers it envisioned make a difference anymore. The court decided that the clear meaning of words in the law are ambiguous and may be disregarded, but the words of IRS regulations are immutable and sacred.

The unaffordable Affordable Care Act, enacted into law by Congress, authorizes government subsidies for insurance coverage for patients in exchanges "established by the State." But some anonymous regulation writer in the Internal Revenue Service issued a regulation that authorized the subsidies "regardless of whether the Exchange is established and operated by a State."

The Supreme Court had a simple decision before it: does Congress enact laws and the president enforce them? Or do mid-level bureaucrats and functionaries acting like Russian Tsars issue arbitrary ukases having the force of law without the inconvenience of a legislative body?

The president complained that the plaintiffs twist the meaning of the words "established by the State"--words used nine times in the legislation, indicating that the congressmen drafting the bill actually meant them.

The court would hopefully not allow the president to ignore the phrase "Congress shall make no law" in the First Amendment because they are only five words in a big Bill of Rights. But it sounds now like the current justices could disregard them by ruling that the words are ambiguous and must be read "in context."

In 2012, President Obama made three "recess appointments" to the National Labor Relations Board, thereby avoiding the need for U.S. Senate confirmation. The senators were not aware that they were in recess at the time--the president simply declared that the Senate was in recess. The president’s action was a revealing indicator of his contempt for any constitutional restraint on his powers.

But he was restrained. In 2014, the U.S. Supreme Court unanimously concluded that the Senate, not the president, gets to decide whether or not it is in recess and ruled the appointments unconstitutional.

Unfortunately, the ruling in King v. Burwell suggests that executive implementation of legislation can, under the Constitution, change the clear wording of the law.

Any ruling by the U.S. Supreme Court in this case, however, at least makes the Constitution relevant to medical care, even if on a narrow area of interpretation of a law enacted by Congress. It was about time the Constitution was brought up.

The debate in Congress about Obamacare completely ignored the question of whether individual patients have any rights to make their own decisions about their insurance and health care, or whether physicians have any rights to make their own decisions about their medical practices. 

When Chief Justice John Roberts ruled that the U.S. Government could mandate the purchase of health insurance by every individual because the penalty for not doing so was really a tax, we learned--as we are learning again now--that we cannot and must not rely on the courts to protect us from the rampaging expansion of presidential and congressional power over every aspect of our lives.

The only remedy for Obamacare must be a legislative remedy, which is why we have elections. ESR

Richard E. Ralston is executive director of Americans for Free Choice in Medicine, Newport Beach, California. Copyright © 2015 Americans for Free Choice in Medicine. All rights reserved.

 

 

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