|By Laura Green, The Palm Beach Post, Fla.|
Its fate, however, will be decided by one of the oldest concepts of American law: that
However the court rules on the question of whether
"There will almost certainly be some message for
If the court strikes down the law, " it will establish new limits," he said.
With the court still debating the question,
But is that true?
The question may not be so easy to answer. The court's view of
For its first 13 years, the
Then came Marbury v. Madison, a seemingly unimportant case in which a justice appointed by
The court seated
"That was really a big deal because now, at the end of the day whether a law was going to stand or fall was going to be decided by the
Among a series of New Deal regulations struck down by the court in the 1930s were an agriculture price support program, a code setting maximum working hours and a minimum wage for the poultry industry, and a law setting pensions for railroad workers.
The court ruled that
Suddenly, the court issued a series of rulings upholding programs including the Social Security Act.
Although not a New Deal case, one of that era that bears particular note is Wickard v. Filburn. Both proponents and challengers of Obama's health care law cite it.
In that 1942 case, a wheat farmer sued over laws establishing grain quotas.
The court said no, on the grounds that Filburn's personal crop would reduce his activity -- his purchase in the national grain market.
Health care law supporters argue much the same: that the inactivity of people in the health care market -- the decision not to buy insurance -- is driving up the price for others.
Critics of the health care law, though, say this case is different. People who are not buying health insurance haven't entered some alternative health care market.
"The people who don't buy health insurance are not growing their own wheat; they are going without wheat," said Jarvis, explaining the argument.
It was not until 1995, 53 years after the Wickard case, that the court found
The decision signaled another change in the court. A majority of members seemed to say, "
Health care law supporters note an important connection to the Wickard and Lopez cases that they hope will secure the Affordable Care Act. In both, justices focused, in part, on whether
Softening his original remarks, Obama recently made the economic policy distinction, saying: "We have not seen a court overturn a law that was passed by
Jarvis agrees the court has often deferred to
"Of course the health care legislation is economic legislation because at the end of the day, it's looking for people either to buy insurance or pay a penalty," he said.
But Jane Orient, a doctor and executive director of the
Orient's group filed eight briefs in the Affordable Care Act case and has its own lawsuit on the issue that is on hold, awaiting the
All else is overreach, including Wickard and other precedents, she said .
If the court strikes down the law, Orient said, it could be a message to
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