USSC v UKSC: What ObamaCare decision tells us about the key differences between the two

by Dan Tench

Yesterday’s decision of the US Supreme Court in NFIB et al v Sebelius regarding the Affordable Care Act (“ACA”, aka Obamacare), which has convulsed the American political scene, usefully illustrates the important differences between the US Court and its UK equivalent.


The ambit of the Court’s power

Firstly, the American court has much greater ambit to intervene and strike down primary legislation. In the UK, Parliament is – at least in theory – sovereign. In the US, Congress can legislate only in accordance with the US Constitution. Ultimately, it falls to the US Supreme Court to determine whether legislation is constitutional, which was the essential issue over the ACA. In reality, this confers enormous power on the Court.

In the UK, there is no direct equivalent. We have no written constitution by which legislation can be measured. However, the Court can strike down primary legislation on the ground that it is incompatible with European Union law. And in recent times, the Courts here have taken their powers of interpretation to new levels. For example, in Assange, the Supreme Court held that the Extradition Act 2003 had to be interpreted to be consistent with European Union law as it developed despite producing a result which was contrary to express statements made in Parliament during its passage. In this way, the Court showed it was perhaps as prepared to frustrate the will of Parliament as its American counterpart.

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We thank @UKSCblogcom for the pointer

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