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."