Congratulations, You’ve Been Pre-Approved for a Supreme Court Ruling

Today is the third and final day of Supreme Court argumentation about the new health care law.  Central to the entire debate is whether or not it is constitutional for the federal government to mandate that every citizen buy health insurance.  A host of arguments moral, philosophical, legal, and practical have been marshaled on either side of the law, and Americans wait with baited breath to see what the justices will decide.

Though the actual ruling will not be released until June, various comments made by the justices during yesterday’s proceedings indicated to most analysts that the new “mandate” portion of the new law is in serious jeopardy of being overturned.  Though it looks like a good deal of the law may remain, the removing of the mandate portion would be a setback for the Obama administration.

I’m not a constitutional or legal expert, so I will not be offering any comment on whether or not I think the mandate is constitutional.  What I will say is this: I am happy to know that all branches of our government are spending time considering this potentially massive change to American society and that our democracy continues to consider these questions closely.  I know that politics gets mixed up in all of this far too much, but at least operationally, this legal challenge is a sign that the system is working.

This said, I must admit I am a little confused at the procedure here.  The Obama administration is full of some smart people.  If the mandate was so potentially controversial, wouldn’t it have made sense to consider a possible Supreme Court challenge before passing the bill?  Is there no procedure for walking down the block to the Supreme Court and asking for a straw poll on constitutionality?  Doing so might have saved everyone a lot of time, energy, and money.  Otherwise, all Congress is doing is passing potentially controversial laws and crossing their fingers that the Supreme Court will leave it alone.  This seems a little inefficient, to say the least.

Legal friends and others, tell me: how do the Executive or Legislative branches prepare for possible constitutional challenges BEFORE passage of laws, and what happened in this case?


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