Congress has now passed the health reform bill. In the next few days, the President will sign the Senate bill into law.
So where do we go from here, from a legal perspective?
Once signed, the law will certainly be challenged on constitutional grounds, both by state attorneys general and by private citizens. The grounds for the challenge will involve an attack on the so-called “individual mandate” — the provision that will require every person to have some kind of health insurance. This argument could be based on two grounds: that Congress’s power under the Commerce Clause to regulate economic activity does not authorize it to force people to engage in economic activity (i.e., to buy an insurance contract), and that the mandate violates the Tenth Amendment, which reserve rights to the people or the states unless they are specifically granted to Congress in the Constitution.
It’s doubtful that this litigation will be successful, since no major piece of social legislation has been ruled unconstitutional based on the Commerce Clause since the 1930′s, and the Supreme Court has rarely invalidated statutes based on the Tenth Amendment.
The other major legal question is the significance of the last minute deal for an executive order from the President that claimed to apply the Hyde Amendment (the provision of law that restricts federal funding for abortion) to the health care bill.
Sadly, this executive order is a nullity, and will certainly be set aside by the courts, if the President even bothers to try to implement it.
The separation of powers doctrine, which is at the heart of our Constitution, dictates that Congress makes laws and disburses money, the President enforces these laws, and the courts interpret them. The courts have consistently ruled that the President cannot unilaterally amend or revoke laws that Congress has enacted, he cannot refuse to spend money that Congress has ordered to be spent, and he cannot interpret statutes in a way that is inconsistent with court rulings. The President is authorized to enact regulations to implement laws, but only if he is delegated that authority by Congress, and his regulations cannot be inconsistent with the original statute or with court rulings.
The executive order promised by the President purports to apply the Hyde Amendment to the health care bill. But the bill does not contain the Hyde Amendment, or any language like the Hyde Amendment. In fact, the Senate and the House both specifically rejected including such language in the bill. The President lacks the authority to include the Hyde Amendment on his own initiative — he cannot amend the plain meaning of a statute to make it mean something that Congress did not enact.
In addition, the executive order runs afoul of all the previous court rulings on federal health care statutes (e.g., Medicaid). In every case decided, the courts have ruled that these health care bills are required to cover and pay for elective abortions, unless Congress specifically forbids such funding. That is why it is necessary to have the Hyde Amendment added to spending bills every year, and that is why it was needed in this bill. The President lacks the authority to define a statute in a way that is inconsistent with these court rulings. Again, he cannot enact the Hyde Amendment on his own.
So, if neither the courts nor the executive order is the answer, where does that leave us, on the day after?
The only way to change the law is to do it through the legislative process. And that brings us back to elections and culture. As we saw on Sunday night, that means that we need more authentic pro-life legislators. And we can’t do that until the conscience of our culture — of individuals, of voters — is awakened to the gross injustice of abortion. Every time abortion is discussed as a major political or social issue, hearts are changed and people become more pro-life in their sentiments. Our task is to energize people into a commitment for real social justice that is dedicated to fully protecting the unborn, and to electing representatives who will ensure that our civil laws reflect and embody the fundamental moral law. Nothing short of that will ever be acceptable.
And so, on the day after, we bind our wounds, recommit ourselves to the crusade, and move on to the next struggle.