Supreme Court

ObamaCare and Judicial Deference

|

Writing at Townhall.com, Institute for Justice attorney Anthony Sanders argues that the Patient Protection and Affordable Care Act is not entitled to any deference from the courts:

Judges considering Obamacare challenges have clear directions from the Constitution but confused precedents from the Supreme Court. A properly engaged judge would recognize that when precedent is murky, but the Constitution is clear, the judge must side with the Constitution. To side with the government simply because it is the government—as far too many judges do today—is abdication, not judgment.

Government will always push to expand its powers beyond what the Constitution authorizes. The framers understood this and believed the judiciary would be, in James Madison's words, "an impenetrable bulwark against every assumption of power in the Legislative or Executive." Whether the Supreme Court will fulfill that duty when it considers Obamacare—where the unconstitutionality of the law at issue could scarcely be clearer—will be the difference between judicial engagement and judicial abdication.

NEXT: Reason Writers on Russia Today: Matt Welch Talks PATRIOT Act Reauthorization and Tea Party Civil Liberties

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Obama’s administration doesn’t give a rats ass about non-SCOTUS judgments, and considering how he insulted SCOTUS judges last year during his SOTU address shows how much he cares about those as well.

    He ignored the judge that overturned the moratorium on drilling leases in the gulf which has handicapped the recovery process, and he has so far ignored the judges who have ruled that Obamacare is unconstitutional.

    He just doesn’t care.

    1. “He just doesn’t care.”

      I am completely convinced that he has no idea what he is doing.

      I mean, the man cannot recognize even his most glaring and destructive errors. Devastation is immediate and inevitable when he simply lacks skills necessary to learn.

      1. So you’re saying a guy with absolutely zero executive experience (or prior employment outside of the state or federal government) who has ridden his rhetoric all the way to the top is somehow completely clueless as to how perform the job functions of the most important executive position in the world?

        Does this mean that Obama was never properly vetted before his snowballing of the electorate?

        SAY IT AIN’T SO!!!

        1. But at least we didn’t get a vice president who was so inexperienced that she was only the executive of a state for two years.

          1. Yeah, thank god we didn’t elect a VP who had the bright idea of further dividing Iraq in to separate countries right before the Anbar Awakening, or a guy that is so in love with federally subsidized trains that he makes sweet love to them in his spare time, or a guy that said “You can’t go in to a 7-Eleven or a Dunkin Donuts in Delaware unless you have a slight Indian accent” in front of a news camera.

            We are so fucked aren’t we.

  2. “The judge has made his decision; now let him enforce it.”

    1. For the love of God, Andy, don’t shoot me.

  3. The idea of a constitution may have made sense 200 years ago, but in the modern world we must unshackle the government so that we can compete with China. They are building entire cities while we sit on our fat asses arguing about what some dead, white slaveowners meant. Wake up!

    1. I can never tell who’s a troll and who’s a spooftroll anymore.

      1. I’m guessing this is a spooftroll, but it could be some brainwashed liberal that actually believes this, ala Mr. Friedman at the NYT.

      2. No. I just think they are being honest for once.

    2. It would be truly awesome if we had some way to embed an audio clip after every one of this dipshit’s comments that was that classic sound of a huge Chinese gong being struck.

      BWOOOONNNGGG

      1. Followed by the Hong Kong Phooey music.

      2. Everybody was kung-fu fighting
        Those cats were fast as lightning
        In fact it was a little bit frightning
        But they fought with expert timing

        They were funky China men from funky Chinatown
        They were chopping them up and they were chopping them down
        It’s an ancient Chineese art and everybody knew their part
        From a feint into a slip, and kicking from the hip

        Everybody was kung-fu fighting
        Those cats were fast as lightning
        In fact it was a little bit frightning
        But they fought with expert timing

        There was funky Billy Chin and little Sammy Chung
        He said here comes the big boss, lets get it on
        We took a bow and made a stand, started swinging with the hand
        The sudden motion made me skip now we’re into a brand knew trip

        Everybody was kung-fu fighting
        Those cats were fast as lightning
        In fact it was a little bit frightning
        But they did it with expert timing

        (repeat)..make sure you have expert timing
        Kung-fu fighting, had to be fast as lightning

        1. Wow. Those are really the lyrics to that song?

          1. That’s what the Internet told me.

            1. Yes, they are. I used to be in a road band in the 80’s and when a club date would fall off the calendar on short notice, our agent would get us a high school gig (he’d tell some lesser band in his stable that there’d been a double booking and give it to us).

              We didn’t really like the gigs, but high schools are stupid so they paid pretty good.

              Anyway, at high school gigs, we used to run odd music through our sound system during our breaks and Kung Foo Fighting was one of those songs. But the best one for high school gigs was the Paul Anka and Odia Coates duet Havin’ My Baby.

              1. “But the best one for high school gigs was the Paul Anka and Odia Coates duet Havin’ My Baby.”

                God…thanks for ruining my night. Now that damn song will be in my all weekend.

    3. http://www.youtube.com/watch?v=gJC7ykAPXuw

      (This is a stolen clip from the South Park episode “The China Probrem” that I posted to juxtapose with “The Truth”‘s comment.

  4. in James Madison’s words, “an impenetrable bulwark against every assumption of power in the Legislative or Executive.”

    Would that it were so. Instead we get the rubber stamp brigade who are as disinterested in keeping to the constitution as the other branches of government. I’m surprised they actually keep up appearances by calling themselves constitutional scholars.

  5. It would be nice if legislators got over this absurd deference to courts and starting voting against acts they thought were unconstitutional.

    And as long as I’m dreaming, I want one them rainbow shitting unicorns and for Obama to pay my mortgage.

  6. Whether the Supreme Court will fulfill that duty when it considers Obamacare?where the unconstitutionality of the law at issue could scarcely be clearer?will be the difference between judicial engagement and judicial abdication.

    In stark contrast to L. Tribe’s assertion in the article yesterday that only an idiot could doubt that ObamaCare is clearly, undoubtedly fully Constitutional.

  7. Sanders’ quote is beyond dispute, because it is a tautology. Judges should not defer too little (“activism”), and judges should not defer to much (“abdicate”). They should defer “just the right amount.” (Call it the Goldilocks theory.)

    Where Sanders flubs is in a later portion of the quoted piece, when he says:

    “The legal issue in the Obamacare challenges is … simply whether the inactivity of not purchasing health insurance constitutes interstate commerce subject to regulation by the federal government.”

    Uh, no. The question is whether, in exercising its commerce power over the nation’s medical insurance industry, Congress can include a provision that penalizes (or at least taxes) the passive choice to forego individual medical insurance. And this determination must be made in the context of the shared assumption, by friends and foes of the bill alike, that the bill will fail altogether without the individual mandate.

    Whatever the judicial review is to consist of, it is not breaking out each and every individual clause, provision, and qualifier in the statute and seeing whether it, standing alone and in isolation, could pass the commerce-clause test all by itself. The statute has to be read as a whole.

    Sanders also flubs by asserting, ipse dixit, that not buying health insurance is nothing more than an “inactivity.” It is actually a decision to self-insure. In a world and a society still beset with communicable diseases, the decision to “opt out” of the medical system is fraught with peril for others. Your untreated TB is my problem. The choice to inadequately self-insure for care of medical problems, including communicable disease, is not a purely self-regarding choice. It bears fair analogy to building against fire codes in a densely-packed urban neighborhood.

    1. The question is whether, in exercising its commerce power over the nation’s medical insurance industry, Congress can include a provision that penalizes (or at least taxes) the passive choice to forego individual medical insurance.

      Wrong.

      (1) There is no tax. Congress was very clear on this. This is not an exercise of the taxing authority.

      (2) You cannot imbed an unconstitutional action in a nest of constitutional actions, and thereby render it constitutional. Every action the government takes must be constitutional taken on its own merits.

      Let’s assume, for the sake of argument, that the government has no authority to order anyone to mow their lawn. Many people engage in the “passive choice” (whatever that is) of not mowing their lawn.

      The government determines that the lawn care market is interstate and in dire need of regulation, and passes a bunch of laws regulating what sorts of equipment can be used, who can use it, the rates they can charge (all, arguably, Constitutional) and, oh by the way, requiring everyone to cut their lawn once a week.

      Suddenly, the lawn cutting mandate is transformed into a Constitutional law because it is embedded in a longer bill?

      I don’t think so.

    2. Danny, is there any imaginable power that Article I, Section 8 does not grant to Congress?

      If not, then what’s the point of the Founders including the list of powers there? Why not save ink and just write that Congress can pass any law it wants so long as it doesn’t violate another part of the Constitution?

    3. Danny,

      Why would you bother? We are all quite familiar with the state’s case. We have considered and rejected it. Thank you, though, for the rehash. Have a good weekend.

    4. Re: Danny,

      Judges should not defer too little (“activism”), and judges should not defer to much (“abdicate”). They should defer “just the right amount.” (Call it the Goldilocks theory.)

      This being a never mind for you?
      “A properly engaged judge would recognize that when precedent is murky, but the Constitution is clear, the judge must side with the Constitution.

      In a world and a society still beset with communicable diseases, the decision to “opt out” of the medical system is fraught with peril for others.

      A recipe for fascism: “We’re in this together.”

    5. Self-insuring is not analogous to opting out of the medical system. Opting to pay for your healthcare needs, if any, out of pocket is in any sense similar to refusing vaccinations.

    6. “(or at least taxes)”

      Nope.
      Ask the folks who wrote that mess; no taxes included.

  8. The Republican failing is not to have pro-actively brought in their own HC plan, and desperately now trying to catch-up. Kay Granger has proposed The Affordable Health Care Expansion Act (H.R. 636)but it requires the repeal of the present act-Good luck with that

    1. Re: Rather,
      Translation: I have nothing I cna write that’s relevant to the point.

      1. Thank you god

        1. Re: Rather,

          Thank you god

          Old Mexican will suffice, Rather. And, you’re welcome.

          1. Mr. “I cna write”, she was thanking me

            1. Re: God,
              Mr. “I write ‘god’ with a small ‘g'”, he was thanking ME.

              1. Mr. “I cna write”, I was just telling Rather I love when she kicks your sexist misogynistic asses on H&R
                -we women stick together

                1. No, we don’t.

                  1. SI, I’m so disappointed in you!

    2. I’m still dead, honey.

    3. Rather|2.11.11 @ 4:33PM|#
      “The Republican failing is not to have pro-actively brought in their own HC plan…”

      If one party chooses to jump off a bridge, it in no way obligates the other to offer bridge-jumping plans.

      1. The Republicans had a plan but lacked the political will. Even Kay Granger acknowledges “[t]wo of the big challenges the health care law should have addressed were affordability and coverage. The two issues are closely related because many Americans cannot get insurance coverage because it is too expensive.”

        1. Re: Rather,

          “[…]the big challenges the health care law should have addressed were affordability and coverage. The two issues are closely related because many Americans cannot get insurance coverage because it is too expensive[.]

          And because they’re FREEEE RIIIIDERS!!!

          Do you know the Nash Equilibrium? Do you? DO YOU?? Heathen!

          1. yes a % will be negligent, and will always be so under any system.

            Te proposed HC options will help the majority of people who cannot afford it, and even those who choose not have coverage.

            1. Rather|2.11.11 @ 8:07PM|#
              “Te proposed HC options will help the majority of people who cannot afford it, and even those who choose not have coverage.”

              Yes, and by the same fantasy, unicorns could poop food.
              What color is the sun from the planet you live on?

              1. If you geeks stopped the unicorn slaughter they could poop food
                http://www.huffingtonpost.com/…..51846.html

        2. Rather|2.11.11 @ 6:58PM|#
          “The Republicans had a plan but lacked the political will…”

          Yep, it’s hard to sell that alternative jumping-off-the-bridge plan.
          Please check under your chair; I think your brains leaked out.

          1. Sevo, Read all about it
            http://rctlfy.wordpress.com/20…..eap-trick/

            What’s under your chair?

        3. I’m confused as to how insurance and health care are the same thing.

  9. Poor unions:

    http://www.bloomberg.com/news/…..ights.html

    I can’t wait to hear the bitching about this.

  10. “To side with the government simply because it is the government ? as far too many judges do today ? is abdication, not judgment.”

    Well, who pays judges, you or the government?

    Judges are government are judges are government are judges are….

    1. Well we do, actually. The government just signs the check.

  11. Why then did the authors of the Constitution have judges chosen by the very people whose powers they were supposed to check?

    1. Institutions, not people. Judges don’t get thrown out when a new crop of politicians comes into office. (Ok, sure, some subset of judges will have been chosen by those people. But not all of them. And President/Congress have no further leverage over them).

  12. A properly engaged judge would recognize that when precedent is murky, but the Constitution is clear, the judge must side with the Constitution

    If this were the case, much of our current precedent would not exist.

    NTTAWWT

  13. The question is whether, in exercising its commerce power over the nation’s medical insurance industry, Congress can include a provision that penalizes (or at least taxes) the passive choice to forego individual medical insurance.

    Assume a can opener.

    1. That whoopass isn’t going to open itself

  14. you can share with me selflessly in the future days!

Please to post comments

Comments are closed.