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Article image The “Organic Constitution” and the “Affordable Care Act”

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Posted On Sat, Apr 14th 2012 Posted by : Staff


           The “Patient Protection and Affordable Care Act” (PPACA), otherwise known as Obamacare, is a United States federal statute signed into law by President Barack Obama on March 23, 2010. The Congressional intent behind the passage of the law is to provide health care coverage for a majority of United States citizens, including those that are currently unable to afford the cost of coverage. A controversial aspect of “The Patient Protection and Affordable Care Act” (PPACA), is the provision(s) of the PPACA that is oftentimes referred to as the “Individual Mandate”. The “Individual Mandate” is an attempt by Congress to provide Universal Health Care to all U.S. citizens by requiring every person to purchase health insurance or suffer a “Penalty” in the form of a fixed monetary dollar amount. Proponents of the PPACA argue that the rising cost of healthcare is in part due to the treatment by emergency rooms across the United States of those people that do not have health insurance. These costs, it is argued are passed along to everyone and the burden is unfairly born by society as a whole. Via various Constitutional arguments, the Obama administration has argued that they have the Constitutional authority for passage and implementation of the PPACA. However, if the Supreme Court determines that, in imposing an “individual mandate,” Congress has exceeded its authority under the Commerce Clause of the Constitution, the law can be struck down in whole or in part.


            The “Patient Protection and Affordable Care Act” was passed by the 111th Congress in an atmosphere of political division and fundamental disagreement by its members over the direction of the United States of America. The tortuous passage of the PPACA gave rise to such phrases as the “Cornhusker Kickback”; “the Nebraska Compromise”;"the Slaughter Rule," "the Deeming Maneuver," and "the Self Executing Rule." All of these phrases refer to the process whereby the PPACA was voted on by members of Congress. The Congressional process during this time period tested the limits of American jurisprudence. To be clear – “Legal Realists” have no objection to the manner in which the PPACA was shepherded through Congress because legal realists fundamentally believe that legal reasoning is not separated from moral and political discourse. Machiavelli could not be any prouder of such an axiom because the “ends always justify the means.”


              On the other hand, “Legal Positivists” are appalled at the manner in which the PPACA was passed by the 111th Congress. It is a generally accepted central claim of legal Positivists that "In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits." The preservation of the rule of law is itself an intrinsic component of the determination of whether such law is in fact lawful.


            Which brings us to the soon to be expected Supreme Court decision later this year as to whether the PPACA is unconstitutional? The limits of the Commerce Clause and the ability to provide for the general welfare of the American public are going to be tested as never before. The very foundations of our republic are coming under question in ways that are recalling aspects of our republic that go back to  Marbury v. Madison, the landmark 1803 case which formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. Whether the PPACA is Constitutional or not, will shape whether the legal realists or the legal positivists can claim victory for their respective jurisprudence.


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