In his Sunday column for The Washington Post, George Will highlighted a recent concurring opinion from Texas Supreme Court Judge Don Willett, arguing that Willett’s forceful case for judicial review is particularly relevant to the ongoing legal battle over ObamaCare:
Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett's words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?
Willett says: In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands."