ObamaCare and the Conservative-Libertarian Legal Divide

Later this week, U.S District Judge Roger Vinson will hear arguments in the case filed by the attorneys general of Florida and 19 other states challenging the constitutionality of ObamaCare. Writing in the Los Angeles Times, reporter David Savage notes that this suit and the other legal challenges to the health care law have exposed some significant fault lines within the conservative legal movement:

The suits against the law highlight the conflict in two strands of conservative legal thinking. In recent decades, most conservatives have argued that judges should defer to elected lawmakers and not "legislate from the bench." The administration's lawyers cite that principle and say judges have no basis for second-guessing an intricate law that was debated and passed by the House and Senate.

However, libertarian conservatives have maintained that judges have a duty to protect liberty and free markets and to strike down laws that go too far in regulating individuals or business.

For the origins of this division and why it matters for the future of the Supreme Court, see my article “Conservatives v. Libertarians.”

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  • Hugh Akston||

    However, libertarian conservatives have maintained that judges have a duty to protect liberty and free markets and to strike down laws that go too far in regulating individuals or business.

    It's less about liberty and free markets than it is about judicial review of laws that violate the Constitution. I suppose it's too much to ask an LAT reporter to understand the distinction.

  • ||

    ""I suppose it's too much to ask an LAT reporter to understand the distinction.""

    Why do you think the reporter does not?

  • ||

    Some questions answer themselves.

  • Hugh Akston||

    2nd ¶:

    They contend Congress does not have the power under the Constitution to require all Americans to have health insurance. They also say states cannot be pressured to spend more to cover low-income families.

    14th ¶

    However, libertarian conservatives have maintained that judges have a duty to protect liberty and free markets and to strike down laws that go too far in regulating individuals or business.

    He states the actual legal contention first, then posits a secret motive (without actually quoting anyone).

    So either he doesn't understand the distinction between "protecting liberty and free markets" and enforcing the Constitution, or he does understand it and is purposefully obscuring it.

    Generous soul that I am, I prefer to think he's an idiot rather than a decepticon.

  • Jason||

    Or the distinction between a libertarian and a conservative.

  • MJ||

    Just about everyone who comments "judicial activism" from the right does not understand the distinction, or at least pretends not to. They prefer to suggestthat striking down a law because it clearly violates the constitution is the same as striking down a law that violates the judge's sensibilities.

  • Enyap||

    "most incumbents have argued that judges should defer to elected lawmakers"

    FIFY

  • ||

    Exactly. No lawmaker likes their law being overturned, period. Any judge doing so is being a judical activist in their mind.

  • Attorney||

    In recent decades, most conservatives have argued that judges should defer to elected lawmakers and not "legislate from the bench."

    What sloppy thinking. When conservatives complain about legislating from the bench, they usually mean that judges should enforce the law as written (as opposed to torturing it to find some basis to enact their political preferences). That doesn't mean that when a law itself is challenged as unconstitutional, conservatives want judges to defer to the legislature.

  • David Friedman||

    There is a distinction, suggested by other comments, that isn't made sufficiently clear in either this or your longer article.

    One possible objection—I think Bork's—is to judges overruling legislators. A different objection is to judges substituting what they think the Constitution should say for what it does say. There is no inconsistency in someone who opposes overruling the legislature when the reason is that the judge doesn't like what the legislature did but supports it when the reason is that the legislature did something not permitted by the Constitution.

    These distinctions play into the conservative/libertarian distinction in a complicated way. One possible libertarian position is to support judicial activism—by libertarian judges. While such arguments may be supported by appeals to the text, the underlying basis is quite different from the position that supports "activism" by judges strictly supporting the Constitution.

    Consider Justice Stephen Field who spent his very long career on the Court—at the time the longest ever—trying, with some success, to revise the Constitution in a more libertarian direction.

    Which included dissenting in the Slaughter House Cases.

  • Admiral Ackbar||

    Judges review laws to make sure they are Constitutional. That's one of their jobs. This isn't "legislating from the bench."

  • Richard Stands||

    Don't accept his deifintions Admiral. It's a trap.

  • Bikerider||

    There's another problem with the conservative's legal strategy. If they actually manage to get ObamaCare tossed out on the "Congress does not have the power require us to buy insurenace" argument, then the left has an easy response. Instead of making us "buy" health insurance, they'll just "give" it to us as a new tax-funded entitlement. Ouch.

  • EscapedWestOfTheBigMuddy||

    They will certainly try.

    But that's a big hurdle, and they tripped on it last time around.

    Nor is the current arrangement anything less than a back door for fully nationalized health care. Existing private insurers will be squeezed between coverage requirements and cost limits until they get out of the business en masse---an event which will be characterized as a "market failure" not withstanding that it was wholly caused by government policy---at which point there will be "no choice" but to "let" the government "try".

    Feh!

  • DoDoGuRu||

    In recent decades, most conservatives have argued that judges should defer to elected lawmakers and not "legislate from the bench."

    LOL. If he thinks this is what "legislate from the bench" means then he's an idiot.

    Hint, Mr. Savage: "legislate" means to make new laws...

  • -||

    This story needs a dead dog.

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