Monday, January 31, 2011

Another One Bites the Dust

Earlier today, a federal judge in Pensacola, Florida ruled that the 2010 Patient Protection and Affordable Care Act is unconstitutional. From here on out, we can fill in the rest of the blanks without doing any research whatsoever. Yes, the judge was appointed by a Republican President -- the judge is on senior status, so it must be Reagan -- and no, it is not a coincidence that the suit ended up in Pensacola, Florida -- lots of conservative judges up there -- and yes, the judge ruled that the law exceeds Congress' commerce power. That about covers it.

The response from the Obama administration is not surprising. They don't like the opinion. But far more interesting is the notion that this ruling can actually affect the law going forward.  In the words of an administration official, for example, "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole things is unconstitutional." But this was true before this judge ruled down in Pensacola, and it is not much different from a governor coming out next week and saying that they will support the law because two judges upheld it months before. This one ruling doesn't change anything. Curiously, the judge did refuse to enjoin the law while the parties appeal the decision, yet suggested that his declaratory judgment is "the functional equivalent of an injunction." Whatever that means.

Also quite interesting, if expected, is the reaction from Republican leaders. They praised the ruling.  Not a word about judicial overreaching, or about activist federal judges causing havoc with the work of our political branches. Not a word. I wonder what Senator Sessions thinks of this one. I can only imagine.

I have four questions.

(1) Does anybody, and I mean anybody, really -- no, really -- think that the Constitution speaks on this question as clearly as the judge would have us believe? According to Judge Vinson, “If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain.” The constitutional revolution of 1936 clearly passed him by. 

(2) Does anybody really believe that judicial activism is reserved for liberal judges? Somehow, the Warren Court remains a constant source of opprobrium, with Justices Brennan and Marshall as the flag bearers for activist judiciaries everywhere. The conservatives keep this up, the canard should end soon enough.

(3) Does anybody -- and again, I mean anybody -- understand these attacks on the health care law as anything other than a way to debate anew a policy decision decided months ago? In other words, is there anybody left in the world who believes that these various legal attacks on the health care law are grounded in law and not on the judges' particular ideologies and policy preferences?

(4) Finally, how does a constitutional law professor stand in front of her students and argue that law -- and only law -- matters?

Anybody sick yet?

No comments:

Post a Comment