Judicial Activism?
In a lawsuit brought by 26 states, a Florida judge ruled President Obama’s health care law unconstitutional. A post by Stephanie Cutter, Assistant to the President and Deputy Senior Advisor, quickly labeled the ruling an act of “judicial activism.” For many conservatives, this sounds very strange, yet this is a perfect example of the difference between liberals and conservatives when it comes to the courts and the Constitution.
The Constitution is the basis for the federal government. It defines the structure of the federal government and enumerates what it can do. The tenth amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In other words, if the Constitution does not delegate a power to the Federal government, the Federal government does not have that power.
At the core of this discussion is the key provision of ObamaCare that requires individuals to purchase health insurance. Article 1, Section 8, Clause 3 says that Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” So the question really boils down to: does the power to regulate interstate commerce include the power to force individuals to purchase Health Insurance?
On the face of it, this would seem pretty clear cut. No. How can someone not doing something, i.e., not purchasing health insurance, be deemed to be engaging in interstate commerce? This is particularly true in that currently you cannot even purchase health insurance across state lines. So if you cannot purchase health insurance interstate, how can failing to purchase health insurance be deemed to be interstate commerce? The mandate falls on everyone living in the United States, but in what way is simply living in the United States a form of interstate commerce?
If looked at another way, if the government can pass a law making it illegal not to purchase health insurance, then would there be any limit on what they could do? There wouldn’t? Why not pass a federal law making it illegal not to purchase a place to live, or requiring everyone to purchase a gun or purchase anything the current government wants you to purchase?
At its core, this issue comes down to the question: Do Constitutional limits on the federal government have any real meaning? In short, do they actually limit anything? Conservatives say yes. The Constitution is the governing document and must be followed, or, if need be, changed. Liberals effectively say no. They see the Constitution as a “Living Document” that needs to be understood in a fashion that conforms to the current needs of society. Of course, whatever they want to do is automatically seen as the current need of society that can supersede Constitution.
As a result, liberals and conservatives have different definitions of ‘judicial activism.’ To the conservative the job of a judge is to rule based on what the Constitution says. Judges who ignore the Constitution and rule based on what they think the Constitution should say are activist judges. To the liberal the job of a judge is to adapt the Constitution to their understanding of the needs of society. Judges who ignore their understanding of the current needs, and rule based on what the Constitution actually says are activist judges.
Thus, the White House blog critical of the ruling does not claim that it conflicts with what the Constitution says, but rather “decades of Supreme Court precedent.” The claim is at best questionable, but either way, the White House does not point to the commerce clause itself, but rather court rulings that have expanded the notion of interstate commerce into new areas, that hitherto and not been considered either interstate or commerce.
So the bottom line for this question is do Constitutional limits on the federal government actually limit anything, or can they be ignored at will? Sadly, until this is decided by the Supreme Court, we won’t really know, but that is a different problem.
