On the recordNovember 29, 2011
when the Congress passed the health care law, it imposed a mandate on individuals who lacked health insurance to purchase it. Since then, a number of courts have held that the individual mandate exceeds the power of Congress to regulate interstate commerce. The Supreme Court will soon hear a case on this question. The Supreme Court, which usually gives a case 1 hour of oral argument, is giving the various issues in this case 5\1/2\ hours. This is a modern record. The Supreme Court should exercise its powers of judicial review carefully. One of its major principles of judicial restraint is that an act of Congress is presumed to be constitutional. But this is a presumption that can be rebutted. It derives from the respect that one branch of government gives when reviewing the actions of another. If Congress has made a determination that a statute is constitutional, the Supreme Court should give that finding some level of deference. But the presumption rests on a premise that Congress has made a considered judgment on the constitutionality of the laws it passes. In the case of the health care bill, this did not happen. Republicans raised a constitutional challenge to the individual mandate that was brushed aside by Democrats who favored the bill as a policy matter, and were not going to let a serious constitutional issue get in the way of passing the law.…





