Why the Constitution matters in the health care case, from Richmond Times Dispatch

Although most of the commentaries on the Affordable Care Act ("Obamacare") have emphasized public policy issues such as the spiraling cost of health care and the burden placed on the health care industry by uninsured or underinsured people, the legal challenge to the law that culminated in three days of hearings before the United States Supreme Court has forced both defenders and critics of the law to give at least some attention to constitutional issues. This is of enormous significance. The message that these hearings should send, and that the American people need to hear loudly and repeatedly, is that the Constitution matters.

Irrespective of how the Supreme Court rules in the health care case, it will be important for the justices to rest their ruling principally on constitutional issues and not public policy issues. While it is impossible to completely disentangle public policy issues from constitutional issues in the field of modern commerce-clause jurisprudence, it is possible to subordinate public policy considerations to constitutional considerations even in this area of the law, and it will be important for the court to do this.

There are several good reasons for the court to resist any temptation to act like a policymaking or public policy institution in the health care case, something that it has done in the past. The temptation to elevate public policy considerations to a position of primacy will be great since virtually everyone concedes that the health care system, from the point of view of access and quality of care as well as affordability, is not meeting the expectations of many Americans.
Indeed, President Obama challenged the court to uphold the law largely on public policy grounds shortly after the conclusion of oral arguments. It would be unfortunate, however, both for constitutional and pragmatic reasons, if the court decides that another foray into the public policy arena makes sense in this case.
* * * * * One the one hand, the court (made up of unelected officials) can best defend its scrutiny of the actions of the elected officials of the coordinate (political) branches of the federal government by falling back on the dictates of the country's constitutional or fundamental law. It was just such a defense, rooted in First Amendment analysis, that the justices invoked in response to President Obama's criticism of their handling of corporate campaign spending (the Citizens United case) in his State of the Union Address in 2010.

There is no better protection for the court when attacked by the political branches or by the people than being able to assert that "the Constitution made us do it." Preserving an independent judiciary, in turn, is critical to protecting the personal liberties associated with limited government.
To paraphrase the Federalist Papers, "the reservation of particular rights and privileges would amount to nothing" in the absence of an independent judiciary, that is, a judiciary that is free to do its work without fear of political pressure or manipulation.

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http://www2.timesdispatch.com/news/commentary/2012/apr/22/tdcomm03-why-the-constitution-matters-in-the-healt-ar-1858288/