Tag Archives: Judicial activism

A Different Take On The Constitutionality Of ObamaCare

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The Daily Caller posted an article today about changes made to ObamaCare by Congress. The article reminds us that in 2017, the Republican-majority Congress did not have the votes to repeal the ACA, but did set the individual mandate penalty at zero. They didn’t repeal it, but they took the teeth out of it.

The article then reminds of the Supreme Court’s decision on ObamaCare:

In 2012, the five conservative justices on the United States Supreme Court (including Chief justice John Roberts) held that key portions of the Affordable Care Act (ACA) exceeded Congress’s constitutional authority under the Commerce Clause. But, Chief Justice Roberts then joined the four liberal justices on the Court in upholding the ACA as a tax under Congress’s taxing power because it generated revenue for the federal government.

The question then becomes, “If ObamaCare is no longer generating revenue, is it still a tax?’ If it is no longer a tax, does it still fall under the Commerce Clause?”

The article states:

A recent op-ed at The Federalist claims that striking down the ACA would be “judicial activism.” The article doesn’t defend the ACA as constitutional, but argues that conservatives shouldn’t ask “unelected judges to do what elected members of Congress took great pains to avoid.”

Such a broad view of “judicial activism” would render virtually any judicial review out of bounds. More importantly, it is contrary to the very system of checks and balances set up by the Founders in the Constitution. There is no Constitutional duty to persuade a majority of Congress to stop violating the Constitution—that’s what makes it a written constitution in the first place.

The article concludes:

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function — i.e., when a court writes laws instead of saying what the law is. But asking courts to carve out the unconstitutional provisions from laws is exactly that. Advocating for severability asks the judicial branch to judge the law Congress should have written, not the one it did. A more restrained approach would be to strike down the whole law and let Congress decide whether it wants to pass the law again without the unconstitutional provisions included.

An old saying goes something like: “When you mix a cup of sewage in a barrel of wine, you end up with a barrel of sewage and have to throw the whole thing out.” To extend the metaphor, courts shouldn’t be in the business of sifting through a law to pick the sewage out of the wine, they should throw the whole thing out. Striking down unconstitutional laws is not judicial activism, and it is well within the role of the judiciary to strike the entire ACA as such.

It is definitely time to get rid of the barrel of sewage!

The People Have Spoken, The Courts Aren’t Listening

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Yesterday Legal Insurrection posted an article about the court’s decision in Wisconsin to overturn the changes made to collective bargaining laws by the State Legislature. As you remember, we have gone through recalls of legislators and the governor of that state and the people supported them. Well, the court decided not to.

The article reports:

First it was Dane County Judge Sumi who interjected herself into the legislative process by striking down the collective bargaining reform law, only to be overturned by the State Supreme Court which rejected challenges to the process used to pass it

Now a different Dane County judge has struck the law down again (decision here), this time on the ground that state employees have a constitutional right to collectively bargain, and has reinstated the law as if the legislature never passed the reforms.

This is Governor Walker‘s statement regarding the decision:

The people of Wisconsin clearly spoke on June 5th.  Now, they are ready to move on.  Sadly a liberal activist judge in Dane County wants to go backwards and take away the lawmaking responsibilities of the legislature and the governor. We are confident that the state will ultimately prevail in the appeals process.”

He is right. It is just a shame that we have to fight this battle again and again. The voters have clearly stated their choice, and the state is recovering from a financial disaster. The judges decision needs to be reversed.

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Thuggery From The White House

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President Obama cut his political teeth in Chicago. Chicago politically is an ugly city, and the President needs to learn some manners now that he is in the White House. His remarks about the Supreme Court yesterday were inappropriate and uncalled for.

Yesterday the Daily Caller posted a story on the President’s remarks. The President stated:

[…] I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care. So there’s not only an economic element to this and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

[…] for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly-constituted and passed law. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.

We need to remember that there are other ways to ensure that people have access to health insurance–a government takeover is not the only option. We also need to remember that overturning a bad law is not judicial activism.

The President also stated that Obamacare was passed by a strong majority. That is a lie. It was passed by a parliamentary trick because they did not have the votes to send it back to the Senate after reconciliation. The election of Scott Brown was a glaring example of how unpopular the legislation was. The popularity of a law has nothing to do with whether or not it is constitutional, but we do live in a representative republic where the laws are expected to reflect the desires of the governed.

The question in Obamacare is whether or not the government can force you to buy something you may not want to buy. If that principle stands, it is the end of our freedom as we know it. In passing Obamacare, Congress overstepped its bounds. It is now up to the Supreme Court to put things back in order.

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