As I fly from LA to DC for CPAC, I will forego any further acronyms to take a brief foray back into domestic policy before the next foreign policy crisis explodes.
Under normal circumstances, a federal judge declaring Obamacare unconstitutional would be the lead story. Yet between the riots in Egypt, Ronald Reagan’s 100th birthday, and Super Bowl XLV, this domestic matter was understandably given short shrift by many.
While the decision by Judge Roger Vinson was important, it was not the Earth shattering, life changing event that partisans on both sides claimed it to be. Conservatives including me applauded the decision while liberals once again earned their reputation as the leading verbal bomb-throwers in excoriation nation.
Four judges have now ruled on Obamacare, with a pair of liberals upholding the law and two conservative judges knocking it down. Yet this ruling was more broad. The previous decision against Obamacare ruled that the mandate that everybody purchase health insurance was unconstitutional. Yet that decision did not invalidate the entire law. Judge Vinson rejected the constitutionality of the entire law. Everything was declared invalid.
The left went ballistic, because water is wet. They immediately accused Judge Vinson of judicial activism, which when translated from the original liberal language means they disagreed with him and lost.
Conservatives have long complained about activist liberal judges, but being an activist judge is about expanding a ruling beyond what the Constitution allows for. Roe vs Wade is often cited as an example of judicial activism. Conservatives claim that those judges in 1973 created a new law out of thin air. Liberals claim that the “right to privacy” merely resulted in a new interpretation of existing law. The matter remains unsettled 38 years later, and judicial activism is still used as a pejorative to describe judges who legislate from the bench.
The worst example of judicial activism was when four liberal justices in the Kelo vs New London case managed to get one of the five conservatives to allow the government to expand the definition of eminent domain. This horrendous decision has led to people being removed from their homes to make way for shopping malls.
The reason why judicial activism is mainly on the left is because conservatives for the most part over the last 40 years have controlled the executive branch. The White House still carries tremendous power. The losing side uses the courts more because they need them more.
Yet those who remove their partisan blinders would see that Judge Vinson was engaging in the exact opposite of judicial activism. His ruling was the epitome of judicial restraint. Strict Constructionists adhere to such restraint, while those believing in the unprovable notion of an evolving Constitution are exactly what judicial activism is all about.
All Judge Vinson did was interpret the Commerce Clause of the Constitution. He rightly concluded that the Commerce Clause can regulate action, but not inaction. Punishing somebody for not purchasing insurance or refusing to transact fails the commerce test. A lack of commerce is not commerce. To rule otherwise would have expanded the Commerce Clause well into judicial activism territory.
There are a couple of examples that clearly show how cerebral and careful Judge Vinson was in dealing with the entire case.
A judicial activist would have done more than merely strike down the law. Judge Vinson could have issued an injunction against the law immediately upon his ruling. Knowing that the verdict was going to be appealed to the U.S. Supreme Court, Judge Vinson allowed the law to remain in effect pending appeal. This is a clear example of a judge refusing to wield the entire force of their power.
Another reason Judge Vinson should be considered a model of restraint if that while he rejected the entire Obamacare law, he actually upheld a Medicare rule in support of the Obama administration. The same plaintiffs trying to repeal Obamacare went after the Obama Medicare rules. This would normally be considered a split decision except that the rejection of the healthcare mandate carried greater magnitude. Nevertheless, a reactionary right-wing Judge hades-bent on sticking it to Mr Obama would not rule in favor of his administration on a key Medicare ruling.
The left considers every judge to the right of Ruth Bader Ginsburg to be a judicial activist while the right says the same about judges to the left of Robert Bork. The difference is that in most cases, conservatives are by definition correct. Loose construction is activism, and that emanates mainly from the left.
The left pointed out that Judge Vinson could have struck down the individual insurance mandate without invalidating the whole law. After all, the previous conservative judge who rejected the mandate left the remainder of the law intact.
The problem with the issue of “severability” is that President Obama himself argued for two years against severability. He has repeatedly stated that without mandates, the entire law falls apart.
In a desperate attempt to get the bill passed, Mr. Obama gave different legal arguments to the courts than the emotional arguments he gave to the American people to win passage. He told Americans that the law did not contain a tax. Yet upon finding out that the law would be illegal under that scenario, he had to argue before the courts that it was a tax.
Arguing against calling the bill a tax could be seen as campaign rhetoric. Yet severability was a legal argument by a former professor of Constitutional law. Judge Vinson had no choice but to rule against severability, especially since President Obama never reversed himself and abandoned that argument.
So while conservatives celebrate and leftists foam rabidly, the real reaction to the decision of Judge Vinson should be to shrug the shoulders.
As previously stated, four judges have ruled, and the decisions are split. Until the Supreme Court issues their ruling, nothing is settled. There are most likely four liberal votes in favor of the constitutionality of the law and four conservatives against it. Justice Anthony Kennedy remains a wild card. He often sides with the conservatives, but he is a swing vote.
So where do we go from here? We follow the law. We respect the rule of law. We respect our judges. We recently saw an American judge murdered in cold blood (unrelated to any political ruling), and we do not want to become known as a nation where murdering judges is how judicial review is handled.
As of now, Obamacare is the law of the land. It is on life support, but even the judge who struck down the law refused to immediately enjoin. Those claiming that they can immediately disobey the law are wrong. When we disagree with a law is when we must adhere to it most.
I will work to help get the Obamacare law permanently defeated and reduced to the ash heap of history. Yet I will never advocate judicial, executive, or legislative activism that conflicts with the strict constructionist view of the Constitution.
Whatever the Supreme Court decides, I will accept.
That is what individual and societal restraint is all about. Judge Vinson reminded us of this from the bench. He deserves only judicial plaudits.
eric
The law of the land, but what trumps it I ask?
In Egypt, Mubarak and his associates were the law of the land.
In Germany after 1933, the NAZI judges were the law of the land.
During the Chicago riots protesti9ng the Vietnam War, those involved
were found guilty of violating the law of the land.
In Israel, a rabbi of a yeshiva was issued a warrant for his arrest,
for claiming a book he wrote trumped the law of the (secular) land.
He referred to G-ds law.
At the UCI (Irvine branch), 6,000 Jews signed a petition against
the indictment of a Muslim activist who intensionally disrupted
a speech on the campus by Michael Oren, the Israeli ambassador
to the USA. They claim protests are commonplace on university
campuses..that the indictment was an infringement on freedom of speech
and assembly.
Obamacare is the law of the land, like it or not. However, as in the above,
where there is a will there are always ways.
Even now, insurance rates are going up nationwide (read the LA Times), to
compensate for the lost revenue and extra costs associated with the
legislation.
To those who dont pay federal taxes, or who pay little, Obamacare
is a G-dsend foa anyone w/o health insurance.
For those in the upper brackets who pay most of the federal (and State)
taxes, its an unfair burden on them, its their money.
To those who wanted more government insurance coverage, Obamacare
was a disappointment. To others, any government insurance is
folly.
I suppose its whose ox is being gored.
As we all recall, prior to last Nov, I said whomever has the most votes
would win.
Guess what Obama, Egypt’s population will determine whether the country
goes radical Islam ( a la Hezbollah ) or becomes a democracy.
Its yours to win or lose still.
Just think, if Iraq had had WMD after we invaded. Just a thought
about the what ifs.
Our mistake, was not in invading and getting rid of Saddam, (thanks
Bush), but in the aftermath, by not allowing Iraqis to run their own
lives, for better or worse.
Where were you Mr. Obama. What will you do if the Brotherhood takes
over Egypt and its 600,000 army, hundreds of F16s, and thousands of
missiles?
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