Creighton Law Professor G. Michael Fenner waves the short version of the 906-page Affordable Care Act passed by Congress and upheld by the Supreme Court at his 18th annual Omaha Bar Association Lunch With Fenner.
By Lorraine Boyd
‘A Government of Laws, Not Men?’ Fenner Asks
The Daily Record
Michael Fenner, a Creighton University Constitutional law professor, told his fellow lawyers and Omaha Bar members that his annual update on all things Creighton Law would have to be brief, because he had 210 years of history to cover in his speech on “How the Affordable Care Act Case Came Out As It Did: The Long View, 1803-2013.”
He then outlined the story of the Supreme Court’s path toward the current law, citing the landmark 1803 Marbury v. Madison decision’s assertion that it is the “duty of the judicial department to say what the law is.” Well over a century later, the landmark case of Cooper v. Aaron in 1958 emphatically established that once the Supreme Court says it’s law; it is the law of the land and applies everywhere. It’s “the last word.”
The issue of what is Constitutional continued being debated through the years. Then, after the Affordable Care Act was signed into law, along came National Federation of Independent Business v. Sebelius, in which the Court agreed to consider the constitutionality of two major provisions of the ACA. Chief Justice John Roberts, Fenner explained, voted with the majority in the 5-4 decision in 2012, then assigned himself to write the majority opinion (as he often did). While writing it, Roberts had a change of heart and agreed with only one of the two provisions, thus “in a way, splitting his vote,” Fenner said, thereby upholding the Constitutionality of the Act.
In this case, Roberts wrote an opinion to support his view, he said. “If I’m right, Roberts behaved like a politician.” Why did he do it? “Roberts was a student of John Marshall [who wrote the Marbury v. Madison opinion]. They share a love for the Court as an institution, [and believe that] giving the Supreme Court power and preserving that power strengthens the institution.”
Fenner said Roberts did not want this case to be perceived as the third of a trio of high profile cases (Bush v. Gore and Citizens United) decided upon party lines, undermining the integrity of the Court.
Fenner said Roberts’ decisions have been “half about the integrity of the Court and half about his place in history.” In the end, Fenner questioned whether it really is, as Madison declared, a “government of laws, not men.”
In closing, Fenner noted that after the controversial decision, Roberts headed to an “impregnable island in Malta to teach a class, saying ‘It seems like a good idea!’”