Activist Judge Legislates From the Bench

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Health Care

Another federal judge has found the Affordable Care Act unconstitutional because of the individual mandate. That’s two federal judges saying it’s not constitutional, two saying it is, and about a dozen who wouldn’t even hear the challenges.

Even though the large majority of constitutional scholars and law professors say the arguments against the individual mandate are bunk, that doesn’t mean our illustrious Supreme Court won’t rule against it when it gets to the Court. As Greg Sargent says, the future of our health care is in Justice Anthony Kennedy’s hands.

The ever optimistic Ezra Klein

There’s a chance conservatives will come to seriously regret this stratagem. I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.

I still say the biggest reason the Affordable Care Act is safe is that the insurance industry wants to keep the individual mandate. And I think this is a development the Republicans didn’t anticipate and weren’t prepared for. They’ve got the faithful peons worked up into a tizzy to fight the evil mandate. But insurance companies are forging ahead re-tooling their business models and preparing for millions of new customers. If that gets yanked out from under them in a year or two by the Supreme Court, they will not be happy. Not happy at all.

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8 Comments

7 Comments

  1. Swami  •  Feb 1, 2011 @2:08 am

    Well, it should be interesting to see how this plays out in the courts.

  2. RightKlik  •  Feb 1, 2011 @4:46 am

    Activist Judge Legislates From the Bench?

    No, actually, this is an example of un-legislating from the bench. The judge didn’t create legislation, he destroyed it. And that’s a perfectly legitimate function of the judiciary.

  3. maha  •  Feb 1, 2011 @9:46 am

    And that’s a perfectly legitimate function of the judiciary.

    Yes, when the ruling is based on the Constitution and not politics. However, Vinson’s ruling was more political than constitutional.

  4. c u n d gulag  •  Feb 1, 2011 @8:47 am

    “And that’s a perfectly legitimate function of the judiciary.”
    Yes, provided it’s not selective, and that it’s based on judicial precedent and the Constitution.

    And RightKlik, I have a sneaking suspicion that you’re one of those people who whine and moan about Liberal activist judges, but cheer the Conservative ones. Am I correct in that assumption? Or are you against ALL activist judges?

    I think that the Roberts Court will have it explained to them that this deal means hundreds of billions short-term, and trillions of dollars in the long term, so don’t “f” this up.

    Single-payer/Public Option would have been to much cheaper and easier.

  5. c u n d gulag  •  Feb 1, 2011 @8:59 am

    Oh yeah, and how ironic is it that the one part that the judge found unconstitutional was the Republican idea that the Democrats put in there to hopefully appease enough of them to vote along with them for the bill?

  6. goatherd  •  Feb 1, 2011 @10:53 am

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; …To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

    Okay, maybe I am being simple minded here, but I do notice that people in favor of repeal of the Affordable Care Act do tend to go rather lightly on providing for the “general welfare” and the “necessary and proper” clause.

    I am hopeful that this attempt at repeal will fail. But, if by some chance the act is repealed and we continue to settle for the 45,000 unnecessary deaths annually due to lack of healthcare and the hundreds of thousands of bankruptcies per year related to the cost of medical care, the bodies, both corporal and financial will continue to pile up. But, in that unfortunate event, the grim accounting has to be made and the casualties clearly laid at the feet of the propagandists, corporate lackeys and their allies whose greed and opportunism caused their lives to be lost or broken.

  7. tom b  •  Feb 1, 2011 @11:07 pm

    I hope they can squish these rulings before they get as far as the Supreme Court– I have NO faith in that body.

    Could someone please inform these Republican goons that we US citizens actually WANT healthcare? Appealing to the far right fringe is not likely to help their general appeal.

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