Reason Writers Around Town: Shikha Dalmia on How Conservative Justices Can Overcome Their Hang Ups and Kill ObamaCare


Many Supreme Court watchers, including Reason's very own Damon Root, have pointed out that it would be a mistake to think that the conservative justices in the Supreme Court will overrule ObamaCare just because they think, as they must, that it is anti-freedom. That's because of conservatives' twin concerns about stare decisis (precedent must be respected) and judicial modesty (courts should stay within the limits of their power).

Georgetown University law professor Randy Barnett has already given the justices a principled way to overcome stare decisis issues by declining to let Uncle Sam use the Commerce Clause to regulate economic inactivity, as opposed to economic activity. But Reason Foundation Senior Analyst Shikha Dalmia writes in The Daily that there are plenty of grounds for the justices to overcome their modesty as well.

The whole point of judicial modesty is to prevent unelected judges from substituting their will for the will of people as represented by a duly elected Congress. However, in our scheme of checks and balances, the Founders explicitly gave courts the authority to hem in the Congress when it substituted its will for the will of the people, which it most assuredly did if one recalls all the anti-parliamentarian tactics supporters used to pass ObamaCare.

 She notes:

 [T]o guard against the tyranny of the majority, Federalist 78 explicitly gave courts the authority to overturn laws that violated the constitutionally guaranteed rights of minorities.

But the problem with Obamacare is not that it represents the illicit wishes of a majority — it's that it doesn't represent majority wishes at all. According to recent polls, two-thirds of Americans want the individual mandate repealed. Indeed, the law has never enjoyed majority support. Still, the Democrat-controlled Congress shoved it down the public's throat through wildly unorthodox methods.

To overcome resistance within its own party, it used horse-trading so brazen that horse traders would be embarrassed.

Read the whole thing here.