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Vail Daily column: The future of the Affordable Care Act

The spotlight has once again been shined on the Supremes. No, not those Supremes. Tuck your Diana Ross and sequin dreams away. Rather, the stars of the moment are the justices of the United States Supreme Court, resplendent in their somber ermine robes.

This time, what the justices are cogitating is the very future of the Affordable Care Act. And, perhaps, a pretty good chunk of President Barack Obama’s legacy as well. Specifically, the central issue lain before the court is whether the Constitution grants Congress the authority to require individuals to have health insurance.

Over three days of often intense argument before the court, the Hatfields and McCoys of Constitutional interpretation have argued, cajoled, defended, postulated, postured, strutted, and parried the justices, both conservative and progressive in a effort to shape – and perhaps land a death blow – to the president’s seminal health care reform legislation.



One thing that popped up again and again like a legal Whack a Mole in the lawyers’ arguments was not in the least surprising but, still, of considerable legal and historical interest – the case of McCullough vs. Maryland. And that will be our focus here. A little history, first, a little context next, and then a skosh of legal application.

First, the Supreme Court case of McCullough versus Maryland is old. Really old. Try 1819.



The nut of the case was this:

In 1816, Congress of the United States passed an act titled “An Act to Incorporate the Subscribers to the Bank of the United States.” The act provided for the incorporation of the Second Bank of the United States, which first went into operation in Philadelphia. In 1817, the bank opened a branch in Baltimore and transacted and carried on business as a branch of the Bank of the United States. Both sides of the litigation admitted that the president, directors, and company of the bank had no authority to establish the Baltimore branch, other than the fact that Maryland had adopted the Constitution of the United States.

On February 11, 1818, the General Assembly of Maryland passed an act titled, “an act to impose a tax on all banks, or branches thereof, in the State of Maryland, not chartered by the legislature.”



James William McCulloch, head of the Baltimore Branch of the Second Bank, refused to pay the tax. The lawsuit was filed by John James, an informer who sought to collect one half of the fine as provided for by the statute. The case was appealed to the Maryland Court of Appeals, where the state of Maryland argued that “the Constitution is silent on the subject of banks.” It was Maryland’s contention that because the Constitution did not specifically state that the federal government was authorized to charter a bank, the Bank of the United States was unconstitutional. The court upheld Maryland. The case was then appealed to the Supreme Court.

There, the court determined that Congress did have the power to create the Bank. Chief Justice Marshall asserted four main arguments. First, he argued historical practice established Congressional power to create the Bank. Second, Chief Justice Marshall refuted the argument that states retain ultimate sovereignty because they ratified the constitution. He argued famously that as the people ratified the Constitution, it was the people who were sovereign, not the states. Third, Marshall addressed the scope of congressional powers under Article I of the Constitution. The court broadly described Congress’ authority before addressing the “necessary and proper” clause. While the Constitution does not enumerate a power to create a central Bank, Marshall conceded, such express powers are not dispositive as to Congress’s power to establish such an institution. Fourth, Marshall invoked the Necessary and Proper Clause, which permits Congress to seek an objective that is within its enumerated powers so long as it is rationally related to the objective and not forbidden by the Constitution. Go back and read this last again. This is huge and has rung through the generations ever since.

In liberally interpreting the Necessary and Proper Clause, the court rejected Maryland’s narrow interpretation of the clause, which Maryland had argued meant that Congress could only pass those laws which were absolutely essential in the execution of its enumerated powers. Instead, the court held the word “necessary” in the Necessary and Proper Clause did not refer to the only way of doing something, but rather applies to various procedures for implementing all constitutionally established powers.

The opinion provided that Congress has “implied” powers that need to be related to the text of the Constitution, but need not be specifically enumerated within the text. This case was a seminal moment in the formation of a balance between federalism, federal power, and states’ powers. Chief Justice Marshall also explained that the Necessary and Proper clause “purport(s) to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.”

OK, then, why does this brittle old case matter?

Here, we bump into stare decisis. Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.

So what was going on before the court last week was, in a sense, a rehashing of the McCullough case. One side argued that the Affordable Care Act was beyond the essential functions of the federal government, and the other arguing that Congress’s implied powers permitted its passage and implementation. One side argued that McCullough offered guidance and precedent, the other that McCullough was distinguishable and that its holding should not be further expanded.

So, what’s old is new again.

A decision will be forthcoming in June. Hold tight to your bloomers. Only time will tell how the Justices will ultimately line up and what the Supremes, in their collective wisdom, ultimately will do.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address, robbins@colorado.net.


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