Friday, November 26, 2010

Where Are Thou, Judicial Activists?

The health care law is under heavy attack in federal courts across the country.  According to these attacks, Congress does not have the power under the Commerce Clause to demand that individuals buy their own health insurance.  This is the legal question, formally stated.  Put another way: how extensive and far-reaching are the power of Congress?

I could cobble together a bunch of cases and quotes to argue that the law is in fact unconstitutional.  But I could also argue otherwise.

That is to say: does anybody seriously think that these suits will be decided by formal law, not by political ideology or the judges' personal preferences?

Make no mistake, this is no different from the recent gun control rulings, Heller and City of Chicago, or the Citizens United case, or just about any other major case you can think of.  This is also how the upcoming showdown on the constitutionality of the Voting Rights Act will play out. The justices will paste together select quotes and cases that will inexorably lead them to their inevitable conclusion.  The law will make them do it.

In this vein, I would love to ask incoming House Speaker John Boehner and Senator Sessions what they think about the health care litigation.  I would also love to ask them, in turn, what they think about the upcoming challenge to the constitutionality of the VRA.   I would also love for them to explain what made Justice Thomas a judicial activist but not Justice Thomas or Scalia.

I would then love for them to explain to us all how they would reconcile these various decisions.

It is simply not possible. Not rationally, at least.

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