Civil war at the Court: The Obamacare lawsuit and America's federal judicature

In perhaps the largest states vs. federal government lawsuit in American history, questions about federalism and the nature of the U.S. judiciary collide. Photo: Associated Press

OHATCHEE, Al., May 30, 2012 — With more than half of the United States suing the federal government, the Patient Protection and Affordable Care Act (PPACA, or “Obamacare”) case is a virtual civil war being waged through the courts. It is ultimately a debate over federalism in a post-New Deal America. This is the introduction to a series of articles designed to investigate and explain the constitutional questions and judicial characters involved in the complex story of the country’s most controversial national healthcare legislation.

“We have to pass the bill so that you can find out what is in it away from the fog of the controversy,” said then-House Speaker Nancy Pelosi (D-CA) of PPACA in March 2010. But quite a few citizens were confident that they already knew exactly what was in the bill, and that was what made all the controversy.

The very day the act was signed into law by President Barack Obama, 13 states had filed a complaint against the U.S. Department of Health and Human Services, the U.S. Department of the Treasury, and the U.S. Department of Labor. These plaintiffs were soon joined by 13 more states, one non-profit mutual benefit corporation, and two individuals, ultimately making this a very rare case of more than half the states in the country suing the federal government.

Florida v. Health and Human Services may be destined to become a landmark decision for 21st century America. It will determine whether or not our written Constitution grants the federal government the means to implement socialist-leaning nationalized health insurance and, in principle, nationalized medicine. The implications of the decision will apply to a variety of other issues.

The plaintiffs in Florida, et al. v. U.S. Dept. of Health and Human Services, et al. are Florida, South Carolina, Nebraska, Texas, Utah, Alabama, Louisiana, Michigan, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, Alaska, Ohio, Kansas, Wyoming, Wisconsin, Maine, Iowa, National Federation of Independent Business (in California), Mary Brown (citizen of Florida), and Kaj Ahlburg (citizen of Washington). The case was brought before U.S. District Court for the North District of Florida, with Florida “seeking declaratory and injunctive relief from the ‘Patient Protection and Affordable Care Act,’ P.L. 111-148, as amended by the ‘Health Care and Education Reconciliation Act of 2010,’ P.L. 111-152 (collectively the Act).” The plaintiffs have held that the individual mandate portion of the Act, which would require all U.S. citizens and legal residents to “maintain qualifying healthcare coverage or pay a penalty … is an unprecedented encroachment on the sovereignty of the Plaintiff States and on the rights of their citizens,” is unconstitutional by way of violating the Commerce Clause of Article I, the Due Process Clause of the Fifth Amendment, and the Ninth and Tenth Amendments.

Furthermore, the plaintiffs argue that the Act “violates the Constitution by forcing the Plaintiff States to operate a wholly refashioned Medicaid program. The Act converts Medicaid from a federal-State partnership to provide a safety net for the needy into a federally-imposed universal healthcare regime,” thereby violating the Spending Clause and state sovereignty, and forcing the states to pay for something they do not think they will be able to afford.

As explained by Henry Perritt, law professor and former dean of Chicago-Kent College of Law, part of the plaintiff states’ concern about eventual required rise in state spending is based upon the statute’s requirement that state governments gradually begin covering the cost of the proposed Medicaid expansion (to covering about 10% of it by 2020), and the probability that if the states refuse to participate in the plan, the federal government will take away all of their share of federal Medicaid funding, which often makes up 25-40% of state budgets.

Senior Judge Roger Vinson ruled in favor of the states, saying that the case is “not really about our health care system at all,” but rather “about our federalist system, and it raises very important questions regarding the Constitutional role of our federal government.” Vinson ruled that the individual mandate is unconstitutional and is unseverable from the bill, thus invalidating entire piece of legislation. The defendants appealed to the 11th Circuit Court of Appeals, and the panel of three judges (Chief Judge Joel Fredrick Dubina, Judge Frank M. Hull, and Judge Stanley Marcus), in a 2-1 decision partly affirmed and partly reversed it. The Court of Appeals determined that the individual mandate is unconstitutional, but the Medicaid expansion is not unconstitutional, and that the problem portion can be severed from the rest of the law. Now, after skipping the en banc review, the advocates have taken the case to the highest level – the Supreme Court.

On April 2, 2012, President Obama, obviously frustrated with the possibility of one of his administration’s masterpieces being invalidated by the Supreme Court, made a remark that seemed to be either banter or extreme ideological sentiment:

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

It was an interesting choice of words coming from a former constitutional law professor. For the Supreme Court to overturn a law passed by Congress would of course not be “unprecedented.” After all, judicial review was established as part of American constitutional tradition in the landmark Marbury v. Madison case in 1803, when Chief Justice Marshall dared to assert that the legislation underlying Marbury’s suit could not constitutionally give the Supreme Court appellate jurisdiction over executive appointments, and thus did not give the court the right to issue a writ of mandamus in the case.

Furthermore, it is only realistic to admit that the “strong majority of a democratically elected Congress” was significantly skewed in the passage of PPACA. The bill did not receive one Republican vote, and indeed passed by a mere seven votes in the House of Representatives. But the president’s remarks do bring up a point that many citizens might like to better understand. How does a non-elected panel of judges behoove a system of government “of the people, by the people, for the people,” as Abraham Lincoln so memorably described it?

Let us reflect on the origins of the federal judicial branch established in Article III of the United States Constitution. One of the strongest arguments made for Constitution’s plan for the federal judiciary was written by Alexander Hamilton as Publius in Federalist No. 78, which praised the Constitutional idea of having justices that serve for “good behavior” – which essentially means serve for life. Hamilton thought it was particularly wise to have the judicial branch as separate as possible from the legislative branch. Not all post-colonist Americans agreed. The anti-federalist papers author of the “Brutus” essay XV that appeared in March of 1788 did not disapprove of keeping with the English tradition of maintaining the “good behavior condition” for judicial terms, but he did not like the federal convention’s departure from English tradition when it came to the judicature’s relationship with the legislature. In the English tradition of government, judges are appointed by and ultimately answer to parliament. But here Hamilton and other proponents of the new Constitution drew from the political philosophy of the French Baron de Montesquieu, who advocated separation of the judicial, legislative, and executive powers.

ALEXANDER HAMILTON: The New York statesman who eventually became the first Secretary of the U.S. Treasury was one of the minds behind the Federalist Papers. Hamilton wrote that whenever a piece of legislation comes into conflict with the Constitution, “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

The Judeo-Christian mindset prevalent in the culture of the founders’ day presupposed that only in the perfect governing figure of God could the three basic powers of government be completely united without chaos (Isaiah 33:22 describes God as being the ultimate judge, legislator, and executive). It is not difficult to convince most people that the flaws of human nature, on the other hand, make it dangerous to vest all three powers in one individual, or even in one branch of government.

But how much separation is necessary? Does instituting an independent judiciary threaten to put society at the whims of robed judges in an ivory tower? In No. 78, Hamilton argues that this is not the case at all. First of all, as Montesquieu would testify, the judicial branch is already by nature the weakest branch of government, for it wields neither sword nor purse, and “may truly be said to have neither FORCE nor WILL, but merely judgment,” and even in that it depends upon the executive branch to follow through in applying its decisions. Secondly, to state the obvious, it is necessary to keep the judges as far from political manipulation as possible in order to maintain impartial court decisions. Furthermore, Hamilton believes that one of the roles of the judiciary is to serve as an intermediary between the people and the current legislature.

BARON DE MONTESQUIEU: Charles-Louis de Secondat, baron de La Brède et de Montesquieu authored “The Spirit of Laws,” a source often consulted by America’s constitutional framers, making Montesquieu a unique French voice in the midst of an English-dominated political revolution. Montesquieu was a strong advocate for the separation of powers, writing that “there is no liberty if the power of judging be not separated from the legislative and executive powers.”

In other words, by allowing the justices to have the final word in a dispute over statute by ruling according to the Constitution, the American government allows the people to rule over their legislators. In the opinion of founders like Hamilton, the amending process is sufficient to ensure that the Constitution will always insulate the national will and conscience of the people from the haphazard vicissitudes of their national legislature. While Brutus feared that the judicature working in this capacity will only serve to thwart the plans the American people pursue through their representatives, Publius countered with this theoretical precedent for judicial review: “No legislative act, therefore, contrary to the Constitution, can be valid…[t]o deny this would be to affirm…that the representatives of the people are superior to the people themselves.”

This repeated concern with curbing the transient legislature falls in line with James Madison’s Federalist No. 51, which states that “[i]n republican government, the legislative authority necessarily predominates,” and thus the legislature needs to be watched carefully. In No. 78 Hamilton himself has no illusions about federal judges, and admits that they too might rule according to their “pleasure” instead of according to the Constitution. But in the case of justices inappropriately wielding will instead of judgment, Hamilton argues that it would simply be an instance of the pleasure of the legislature clashing with the pleasure of the judiciary.

To get an idea of what the healthcare legislation and case against it look like through the eyes of the Supreme Court in 2012, we must examine the dynamics of the personalities and minds of judges now occupying the bench.

This was Part I of “Civil war at the Court,” a series on the Obamacare lawsuit at the Supreme Court. Meet the Roberts Court Justices in Part II, “Civil war at the Court: The Justices at the heart of the Obamacare lawsuit“.

Is there anything in particular about the Obamacare case and the Roberts Court that you would like Amanda to cover in the following columns? Be sure to send a message or leave a comment below!

Amanda Read is an unconventional scholar, a Southerner without an accent, a Christian who hasn’t been a churchgoer in 17 years and a college student who lives with eight younger siblings. A writer and artist, she blogs at and is the author of the historical drama screenplay The Crusading Chemist. Amanda is majoring in history and minoring in political science at Troy University.

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Amanda Read

Amanda Read is a columnist for the Communities at The Washington Times. Trained as a historian, skilled as a writer, and aspiring to be a filmmaker, Amanda investigates the ideas behind contemporary culture and politics. A professional writer and researcher, she is also a Christian homeschool graduate, unconventional college graduate, military daughter, and eldest of the nine Read children at Fair Hills Farm. Find more of her work at

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