Monday, December 13, 2010

Judicial Activism at Work

Another example of an activist conservative judge legislating from the bench:

Virginia judge rules health care mandate unconstitutional

I fully expect Sarah Palin, Mitt Romney, Orrin Hatch and the gang to rebuke this affront to our Constitutional system of checks and balances.


Pugs said...

Well that's only 1/3, and one of the other two that wouldn't let the case go forward was from Virginia as well.

We're conflicted out here.....

I didn't pay much attention to the other two filings arguments, just the one in Richmond so I don't actually know how (if at all) any of the three cases correlate, but at least it's a guaranteed ride to the Supreme Court now so we can all get it over with.

Jacob S. said...

Just to expand a little on the glib post, I'll add the following.

All of the law suits are focused on the individual mandate, which is really the most, if not only, controversial thing in this legislation. That is, everyone is required, with some exceptions, to obtain health insurance or face a fine/penalty. This is the mechanism that Pres. Obama is hoping will lower costs because it broadens the pool of people obtaining insurance and spreads the costs and risks out.

The government argues that the commerce clause, giving Congress the right to regulate interstate commerce, and the necessary and proper clause, which is a really broad clause that allows Congress to make laws carrying out its other duties (like the commerce clause), give government enough room to mandate health insurance for all citizens.

I wrote a little about this stuff here.

Opponents of the law claim that a narrow reading of the Constitution prohibits such a mandate. Their idea is that if there is not a specific grant of power to the federal government in the Constitution it (the federal government) can't go there. I explained why I think that is wrong in that link above.

So that's what's going on with the legal arguments, if that helps any.

Josh said...

So, you have a problem with "judicial activism" if it seems to slant to the right, but it's okay if it slants to your way of thinking? For instance. I didn't see any post about the left wing judicial decisions from California, Arizona or Montana last year. Within several weeks of each other, Clinton appointed federal judges dismissed Proposition 8 (couldn't really care any less, but it is relevant), forced the wolf back onto the ESL, and threw out the main body of a state law to protect Arizona from criminals not even from this country.

Yes, the judicial system is VERY flawed, and, yes, political leanings are influencing more decisions than actual law. It is a really bad thing, but it isn't one side only!

Jacob S. said...

Actually, and I didn't think this was too understated, I don't have a problem with "judicial activism" at all, from either side. First, because it is an empty phrase with no real meaning, employed simply for political rhetoric to rile the masses. Second, because our legal system is a continuation of the English common law system that has been in place for around 700 years in which judges make law. They have for centuries and that is simply how it works. And third, ever since Marbury v. Madison it has been established that the Supreme Court, and as a result the judiciary generally, has the responsibility of interpreting the Constitution. It is a beautiful mechanism of separation of powers. So if a court, whether conservative or liberal, interprets the Constitution in a certain way or strikes down piece of legislation or whatever, I don't get upset like conservatives do. And this little post was a nice little sarcastic way of making that point, which you apparently missed, which is probably my fault for being so glib.