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Taiwan should cultivate prestige of the courts

On Thursday, the U.S. Supreme Court upheld the key provision of President Obama's health care legislation by 5-4. The “individual mandate” is seen as constitutional, Chief Justice John G. Roberts explained, because it can be read in terms of a “tax,” and the government has the right to collect taxes from citizens. Roberts, however, also wrote that other previously proposed reasons for maintaining the mandate do not stand, such as the Obama administration's argument based on the Commerce Clause of the U.S. Constitution, which states that the government has the right to regulate commerce. This particular argument does not stand because the constitution only allows Congress to regulate, not create, commercial activity.

The other important point of contention, with regard to the federal government's threat to withhold funding for states who refuse to expand their list of eligible Medicare recipients, was struck down because the proposal augers a difference in “kind,” not of “degree,” and thus violates the basic spirit of voluntary cooperation underlying existing programs jointly supported by the federal government and the states.

In the wake of this landmark ruling, Taiwan should re-examine the role that the judicial branch of the Republic of China plays in the context of important policy issues. Since President Ma Ying-jeou's re-election, there has been a continuing swath of controversy on public health and economic issues. Foremost among them are the U.S. beef debate, rise in electricity and water costs, stock gains tax, and introduction of the second-generation health care reform. All of these involve introducing changes in an effort to cope with budgetary shortfalls or to meet the demands of foreign partners.

Referrals and appeals to the judicial branch of government, i.e. the Judicial Yuan and the Supreme Court, have been conspicuously absent from debate of these topics. In two of the aforementioned cases, the requisite policy changes have not been finalized; therefore, they have not been concrete enough to challenge. What is obviously absent from the debate here is the recourse to legal interpretation of the Republic of China Constitution, which should be a constraint placed on any important government policy, even if passed by the Legislature. The courts should serve as a final bulwark of freedom.

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