Supreme Court

George Will on ObamaCare and Judicial Review

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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."

Read the rest here. I discuss conservative and libertarian disagreements over judicial review here.

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  1. What a radical viewpoint! The constitution imposes limits?!?!?

    Though I would be interested to know what this Judge thinks about executive power

  2. That’s what I’ve been arguing.

    If the commerce clause gives congress the power to regulate any individual economic decision that may have an impact on interstate commerce, even a decision NOT to purchase a product, then it effectively gives congress to control EVERY decision an individual makes, since all decisions have some kind of economic impact.

    And that is to twist the meaning of the words so grossly as to render the entire clause, and in fact much of the rest of the constitution irrelevant. Words need to have some kind of reasonable limitation to their interpretation, or there is no point in writing down laws in the first place.

    1. That a judge could come to such a conclusion and not admit he just invalidated the Constitution with that logical absurdity requires an incredible amount mendacity and corrupt thinking.

      1. …or just a belief that the government is super nifty.

    2. Hazel

      If I understand Lopez and Morrison the limit is that it must rise above activity that has some indirect economic impact and be activity that is essentially economic and which in the aggregate would have a significant effect on interstate commerce. So growing your own wheat to eat instead of buying it on the market is essentially economic and therefore can be regulated but bringing a gun onto school grounds is not. Not buying things falls comfortably under this (it seems the issue in Willard was that in growing his own wheat he was not buying from the market, his non-participation would effect it).

      So the federal government can make you buy spinach but cannot make you eat it.

      1. People who think like this are the very reason we “bitterly cling to our guns”

      2. So the federal government can make you buy spinach but cannot make you eat it.

        No, that’s the point. They could make you eat spinach (see:School lunches, food stamps).

        The original commerce clause was designed to prevent states from setting tariffs against each other. It’s been used as a way to increase federal power over the states beginning in the late 19th century, specifically with the Interstate Commerce Act (1887) and the creation of the Interstate Commerce Commission, which it charged with monitoring railroads to ensure that they complied with the new market standards. The Act was the first federal law to regulate private industry in the United States.

  3. Limits? Baloney!

    1. It’s BS is what it is.

      1. Utter poppycock!

  4. Clarence Thomas’ dissent in Gonzales vs. Raich couldn’t have been more prescient. He wrote “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

    We’ve already seen the new Food Laws go after bake sales, how long before quilting bees and potluck suppers?

    Fuckkkkkkkkkk.

  5. “We’ve already seen the new Food Laws go after bake sales, how long before quilting bees and potluck suppers?”
    Pretty sure the lame duck session won’t run long enough.

  6. 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?

    Ummmm….YES?

    1. Seriously! How hard is this to understand?? How many more such essays are conservative and libertarian pundits going to write? Blah blah blah “10th Amendment!!” blah blah blah “Founders’ Intent!!” blah blah blah “Federalism!!” It’s like a bunch of people sitting around a burnt-out light bulb endlessly talking about how illuminating and warm it was. It’s burnt out!

  7. So the federal government can make you buy spinach but cannot make you eat it.

    Beg to differ. The very same logic being pushed to justify the insurance mandate also justifies forcing you to eat your spinach.

    Since your refusal to act in ways that the government deems to be healthy increases your consumption of health care, it is a refusal with an economic impact. Ergo . . . .

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