Wednesday, December 30, 2009

The Courts to the Rescue?

Anybody else find it amusing (ironic?) how conservatives are quick to castigate courts for their activist ways, yet just as quick to enlist these very courts when it suits their purposes? In case any further proof was needed, here is yet another example, and a surprising one at that: the health care bill.

According to the Florida's attorney general, William McCollum, the personal mandate to buy health insurance in the bill is “an affront to our country’s principles.” As for the fine for those who refuse to buy insurance, he deems it illegal, because it is not connected to any commercial act.

The a Republican who is running for governor in 2010, said that the so-called mandate was He added that the fine might be illegal because, in his view, it is disconnected from a commercial act. In his view, it is “a tax on people or a penalty on those who don’t do anything.”

The Heritage Foundation similarly wishes the courts to save us from ourselves. According to a recent memorandum, the mandate is "unprecedented and unconstitutional," beyond the powers of Congress under the Commerce Clause as well as an unconstitutional tax under Article I, section 8.

It would be easy to engage this debate on the merits, and many already have. But the larger point is far more important. The debate over judicial activism and restraint is often portrayed as a debate between liberals and conservatives over the soul of American democracy. Reality is far from that. We are all activists now, and the only question for the future is whose policy views will the courts accept.

That these debates are carried on in major media outlets and the hypocrisy of the conservative position is not highlighted by anybody is, in and of itself, a triumph of the conservative movement.