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.