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Obamacare faces Supreme test

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WASHINGTON -- The parsing of phrases drawn with quills by men in powdered wigs consumes the American moment. On Monday, the Supreme Court of the United States will begin to hear oral arguments for and against the constitutionality of the Patient Protection and Affordable Care Act of 2010, better known as Obamacare.

Inside the marble chamber, six men and three women, weighed down by politics and history, having already received dozens of perspicacious and conflicting written briefs, will devote an extraordinary six hours to verbal pleas that centre on three inscrutable words that were written on Philadelphia parchment in the eighth decade of the eighteenth century: "necessary and proper."

Outside, there will be marching, chanting, shoving, shouting and screams.

"Hands off my health care!" is the theme of one of the larger anti-Obamacare rallies planned for the courthouse steps, trumpeting their indifference to the millions who have no care from which to be unhanded.

"Join us on the road to repeal!" barks a complementary throng, as if ballyhoo might influence the cogitation of the jurists.

At issue is whether the "Commerce Clause" of the U.S. Constitution, unaltered since it was authored by white men and ratified by infant assemblies in the 1780s, permits Congress to compel every citizen and resident to purchase and maintain a health insurance policy from a private company or quasi-public entity. This is the kernel of the act that was passed two years ago by a single vote in the Senate, after months of backdoor inveigling and guarantees of favours to the ridings, states and persons of the final, anguished fence-sitters.

Tellingly, the Nebraskan who cast the deciding ballot -- himself a multimillionaire and former insurance company executive -- has since abandoned the playing field, rather than try for re-election this November.

The clause itself provides only that Congress shall "make all Laws which shall be necessary and proper for carrying into Execution" its power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The clause's inherent ambiguity has enriched eight generations of lawyers and challenged and divided the Supreme Court for more than two centuries.

The Obamacare case invites the justices to a seance to plumb the looming but unreachable minds of the founding fathers -- Madison, Hamilton, Henry, Jefferson -- and their conflicting views on the reach of the continental government their revolution against the Crown had engendered. It would be notable simply for its delicious legalistic complexity, if not for the fact that it enfolds the wellness and sickness, the prosperity and poverty, of 313 million human souls.

To the justices, the issues are as gossamer as an angel's wings: What is the meaning of "proper;" can something be "regulated" into existence or only after it already exists?

To the masses, the legality or illegality of Obamacare comes down to the federal mandate: When asked in a recent poll if "the federal government should have the power to require all Americans to purchase health insurance," 84 per cent of respondents said No.

Last Tuesday, at a seminar at a conservative beehive called the Heritage Foundation, I asked Ronald Reagan's attorney general, Edwin Meese III, to estimate the significance of the Supreme Court's forthcoming ruling. "It will determine whether we maintain the kind of republic we have had for 236 years, or a totally new reality," he answered.

Meese then expressed his opinion that the Obamacare case is the most momentous issue to come before the Supreme Court since it integrated the public schools in 1954. No one in the room disagreed.

"If there is no limiting principle," he said, "the commerce clause could be extended to just about anything at any time."

Such is the overarching argument of the "Hands off!" paraders and the 26 states that have joined the suit to overthrow the act. If the government can compel you to buy health insurance, they argue, it just as easily could mandate the purchase of popcorn at the movies, a rifle and ammunition, or a portrait of Barack Obama to be hung above every child's bed.

"Commandeering individuals violates the common-law principle of mutual assent to a contract," Erik Jaffe, who wrote an amicus curiae brief on behalf of a right-wing doctors' lobby, said at the seminar. "My desire for people to have health care is not the reason for inventing more powers to get to any goal we want."

"If you're regulating commerce, you do have to wait for commerce to begin," argued Carrie Severino, who filed on behalf of three dozen Republican Senators and the Speaker of the House of Representatives. Obamacare, she said, "eliminates any useful limits on constitutional powers."

Sometime in June, the black-robed sages will issue their ruling, from which there can be no appeal short of the rewriting of the Constitution itself. At issue are words on ancient paper; at stake is the right to live in freedom, and the freedom to die without a healer's care.

Allen Abel is a Brooklyn-born Canadian journalist based in Washington, D.C.

Republished from the Winnipeg Free Press print edition March 24, 2012 J6

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