The wrong constitutional question...

[kentuck]

The Supreme Court is debating whether or not the "individual mandate" is constitutional. They are discussing obscure issues like the role of commerce in the Constitution and whether Congress is acting legally in requiring everyone to pay a penalty if they do not purchase insurance from an insurance company. That debate is all well and good but it is the wrong constitutional question.

The real constitutional issue should be whether or not insurance companies have the right to control the medical services between individual citizens and their doctors? The issue is not about the rights of the Congress of the United States. It is about the rights of the insurance companies of the United States.

It is my opinion that the insurance companies are acting in an unconstitutional manner by acting as a middle man between doctors and their patients. The Supreme Court is discussing the wrong issue.

[No Elephants]

1. The purpose of the Constitution was to decide which powers federal government was to have

vis a vis states and, later, which powers the federal government was to have vis a vis individuals. (The last part originally was supposedly the result of a mistake on the part of states and the populace, but that is another discussion.)

Since adoption of the 14th amendment, the Constitution has also limited what states can do vis a vis individuals. (And "states" includes subdivisions of states, like cities, towns and counties.)

So, at this point in our history, the Constitution grants certain powers to federal government and imposes certain limits on both federal and state governments. That is all it does. So, I am not sure how the SCOTUS could possibly discuss the appropriate roles between doctor, patient and private health insurer as a Constitutional issue.

[kentuck]

2. The Preamble to the Constitution

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
============

We, the people, are the government. We have a responsibility to "promote the general welfare" and I would interpret that to include the health of our citizens. Insurance companies are not about "health", they are about profits. In the chase for the almighty dollar, the health of our people should not be connected to a profit incentive, in my opinion. We, the people, have a right to regulate the insurance companies and to assure they do not screw all of us...

[No Elephants]

3. We the people do not legislate. Congress does. If you figure out a way we the people

can control insurers without action by Congress or state legislatures, let me know and I will join you.

Meanwhile, the SCOTUS cannot roam around the Constitution deciding what might be nice or useful. That is a legislative function, not a judicial one. The SCOTUS can only decide questions or controversies that parties (plaintiff and defendant) properly bring before it.

In order for the SCOTUS to be able to consider what you want it to consider, Congress would have to have enacted some kind of statute limiting the powers of insurers and then parties would have to challenge the constitutionality of that statue. (This is why the judiciary is called the weakest branch, even though it sometimes gets to declare unconstitutional some statute or Executive action.)


FYI: There was a serious legal issue about whether the preamble to the Constitution was ever intended to have legal effect. Typically, that is not the case with legal documents. Ususally, in statutes and contracts, preambles are there only to give background and explanations, not to create legal rights or obligations.

Thing is, if Congress was empowered to provide for the general welfare, our federal government could do pretty much anything and that was not the intent. We were supposed to have a balance between state power and federal power. And the federal government was supposed to be one of limited powers--those listed in the Constitution.

If the federal government was able to do anything for the "general welfare," there would have been little point to listing specific powers of Congress in Article I of the Constitution.

It took both a Depression and FDR's court-packing plan before the SCOTUS held that the federal government had power to enact Depression Era legislation providing for the "general welfare."

[KoKo]

4. Well...I agree with you...but, the "issue framing" is out of our control...

Thanks for the post.

[No Elephants]

5. Issue framing is also out of the control of the SCOTUS.

If they feel the issue is not framed properly, they can sometimes decline to hear the case.

Other than that, they can only proceed with the way the litigants have framed the case.

That is how our legal system works.