Thanksgiving dinner 2015. The parents explain the feast. As per federal regulations, the menu includes low-fat unsalted turkey breast, low-sugar fruit drinks, and, of course, broccoli.
The Supreme Court will decide this term whether Congress can require us to have health insurance as part of health reform. If the answer is yes, could the food police be next? Would we be powerless to stop it?
Health care is an issue near and dear to all Americans, and the outcome of the case challenging the individual mandate will make a big difference in how -- and even whether -- we receive it. The case pits three branches of government against one another -- the president, who shepherded through the law; Congress, which enacted the individual mandate; and the courts, which will decide whether Congress has the power to make us have health insurance. Many people see themselves as passive bystanders in this battle of the titans, with our health care, and perhaps someday our diets, hanging in the balance.
But we are not powerless, and the battle is not between forces beyond our control. What we are seeing is our constitutional democracy in action.
When the Supreme Court agreed to hear the challenge to the individual mandate, it did more than say it would sift through piles of legal briefs and listen to an unusually long six hours of argument. It sent a message to the American public, telling them, in essence, that our system of constitutional democracy is alive and well. It told them that it would act, and quickly, to examine the constitutionality of laws that directly affect them. By accepting the case, the Supreme Court once again showed the people that its issues are their issues, that it is not an Oracle tucked away in a lofty temple on a hill but an accessible institution engaged in work that matters to everyday Americans.
Equally as important, in agreeing to review the constitutionality of the health reform law, the Supreme Court brought home another important lesson in American government, the question of how much power each branch of government -- and ordinary citizens -- have to determine our laws.
The Court's job is to enforce broad parameters on the kinds of laws that Congress can enact. For the health reform law, that parameter is that the law must affect interstate commerce. If the law does, then the Court's job is not to decide whether Congress was wise to pass it or whether President Obama was right to work to get it passed.
That call is up to us -- the voters. Were members of Congress to pass a law requiring Americans to have health insurance, or even to eat broccoli, we would not be left without a remedy. We could vote them out. Think back to seventh-grade social studies -- this kind of inter-branch give and take is the very essence of checks and balances. And it is the epitome of participatory democracy.
It is rare that an exercise of federal power, one involving all three branches, captures the American imagination as this one has. When the Supreme Court hears arguments in the challenge to the health care mandate this March, it will, above all, serve as the steward of the rule of law and the Constitution. The take-away message for Americans everywhere should be that our system of government is at work.
The system is anything but simple. There are layers of law, complex policy judgments, and a continual contest between branches of government. That is democracy in action. We can make our voices heard in many ways, either for or against any law. We are not powerless. And regardless of anything the Court decides, this means that broccoli haters will be safe for a long time to come.
Robert I. Field, M.P.H., J.D., Ph.D., is a Professor of Law at the Drexel University Earle Mack School of Law and a Professor of Health Management and Policy at the Drexel University School of Public Health. Lisa T. McElroy, J.D., M.P.H., is an Associate Professor of Law at the Drexel University Earle Mack School of Law.
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