Judicial activism and unintended consequences

by Mark A. Monoscalco

President Obama’s recent comments about the US Supreme Court’s review of the Patient Protection and Affordable Care Act (PPACA) (commonly referred to as Obama care)  has led to what I assume are unintended consequences.

 The highlight of his Rose Garden statement on 4/2/12 was:

“I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said during a Rose Garden news conference. “Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

The initial consequence of this comment is to display this Presidential Administration’s disdain for the separation of powers.  We are protected from imperial rule by the fact that our three branches of government hold each other in check.  The US Supreme Court has as it’s most important function the ability to overturn laws passed by Congress and Signed by the President that are unconstitutional.  The fact the our current President finds this an act of “judicial activism” by “an unelected group of people” is an affront to our concept of limited government.

The unintended consequence of this statement is to draw attention to a little publicized section of PPACA.   There is currently a case before the U.S. 5th Circuit Court of Appeals contesting Section 6001 of PPACA.  This case has now received nationwide publicity as Judge Jerry Smith a member of the 5th Circuit Court of Appeals has brought President Obama’s statement into the trial.  The details of Judge Smith’s ruling are in this Associated Press article:

Judge upset by Obama’s comments on health care law

What the Judge has to say about President Obama’s comment means little in this discussion.  What is of great importance is the case before the 5th Circuit Court of Appeals.  The case before the appeals court was brought in part by a spine and joint hospital in East Texas that is challenging the constitutionality of a portion of the health care law that restricts physician-owned hospitals from expanding or building new facilities.

The full text of PPACA can be viewed at this link:


You will find the text of section 6001 by entering 639 as the page number in your pdf reader.

We all are now aware that PPACA Section 6001 prevents physician-owned hospitals from expanding or building new facilities.  This is an act of Congress that has been advertised as a means to expand health care availability and reduce its cost.  In reality the law restricts competition in the field of health care.  If the supply of a service is reduced or artificially prevented from increasing then the price for that service will increase.  There can be no other outcome.

Nancy Pelosi was not kidding when she said that we would have to pass the bill to find out what is in it.  It is turning out that we have to litigate the bill to find out what is in it.

Mark A. Monoscalco is a member of the Grassroot Institute of Hawaii. His personal blog, from which this is re-posted, can be found at http://defendingcivilsociety.blogspot.com/

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