Birth-Control Hearing Was ‘Like Stepping Into a Time Machine’

[24601]

23. Most of this argument isn't in the right place. Resolution requires that the

following be addressed.

1. Does the Constutition grant Congress (throough Article I) or the President (through Article II) the authority to make this decision.

If it rests with Article II (and that's unlikely), the debate is over because Congress would lack the authority to to limit inherent Presidential authority without a Constitutional amendment.

2. If it's extended to Congress via Article I (more likely), has there been a Constitutional delegation of powers to the Executive Branch. Plenty of Presidential actions have been struck down because Congress lacked the authority to delegate certain powers, or had the authority but failed to do so Constitutionally.

These are probably going to be decided when the USSC rules on HCR this spring. It's uncertain what Justice Kennedy will decide, but likely that he will be the dispositive vote.

Finally, if it passes the above, the other Constitutional question will be if the decision runs up against, or is supported by, Constitutional powers of the states, or rights of the people. If so, how must they be balanced to pass Constitutional muster.

I said "Finally" because it's highly unlikely that the USSC (any USSC actually) would look at everything and jump to a decree a fundamental right to uncompensated reproductive care - quite a leap from Griswald v. Connecticut (381 U.S. 479 (1965), the case that established that birth control decisions between married couples was none of the governments' business (http://en.wikipedia.org/wiki/Griswold_v._Connecticut). If it's ultimately legal, then the question of course shifts from "can you" to "should you" and that falls to a political question that the courts avoid as the lane in the road for elected branches of government. In that case, it falls back to what provisions are put in various statutes and can bounce back & forth with the political seasons.