Standing By for Liberal Waves of Attack If ObamaCare Is Overturned
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Do Liberals think Roe v. Wade or U.S. v. Nixon was judicial activism?
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The U.S. Supreme Court will hand down its decision on ObamaCare this week and if even part of it is overturned, look for rhetorical blood in the streets by Liberals who think the Court should give the U.S. Congress complete deference and affirm it in whole.
To get some idea of the verbal bows and arrows that will be used, a good start is a March 28, 2012 interview, on New York City public radio’s The Brian Lehrer Show, of New York State Attorney General (and presumed future New York gubernatorial candidate) Eric Scheiderman, who filed an amicus curiae brief with the court in the case.
Mr. Schneiderman invoked the commerce clause and Alexander Hamilton, who Mr. Schneiderman said would approve of such government intervention. He went on to say that he “had a very hard time, other than in a very theoretical, academic, abstract way, seeing how this argument, this law violates the commerce clause could possibly prevail.” So if the Court decides that some of ObamaCare does not meet constitutional muster, they were clearly star-gazing and reached the wrong conclusion when trying to attain their jurisprudential zen. Nice.
Mr. Schneiderman then went on to argue that by virtue of the fact that the federal government regulates all of the healthcare industry, it then achieves powers (although he doesn’t refer where this comes from in the Constitution) to force people to buy health insurance. If this isn’t an inadvertent argument for doing away with all government regulation, nothing is.
Mssr. Schneiderman then submitted that by the court merely hearing this case, and picking issues that it deems important to whether ObamaCare is constitutional, is indicative of a very activist Court. It is hard to imagine that the Attorney General ever thought such when he came out on the winning side of appealed decisions. In all likelihood, he probably has given teary-eyed thanks to a system that allows such thoughtful and level-headed outcomes.
Liberals want the Supreme Court to defer to Congress on ObamaCare
Nina Totenberg, today on NPR’s Weekend Edition Sunday, also carried the activism spear by saying “the case has exposed a major shift in conservative legal thinking. For the last half-century, conservatives, and particularly congressional Republicans, have championed the idea of judicial restraint, arguing that the courts should usually defer to the elected branches. But now, conservatives are explicitly calling for judicial activism.” Either Ms. Totenberg does not understand judicial activism, or she is clearly trying to muddy the waters and hope for the best (like the Democrats did when hurriedly passing ObamaCare). To be clear, Conservatives have generally said that when courts create rights out of the vaporous penumbras of implicit constitutional rights which they have dreamed up, such is judicial activism and should be rejected. Roe v. Wade is such example where state legislatures addressed abortion rights but then lost such power when the Supremes determined in Roe that abortion was an unenumerated constitutional right that legislatures could not address. So judicial activism is the Supremes affirmatively making up law (via rights, etc) where such do not exist. But it does not mean that the Court should sit on its hands and rubber-stamp every law that congress or legislatures pass. There would be no need for the court if they did such.
And regarding judicial activism, which Liberals claim to have a new-found aversion to, do they think Roe v. Wade was judicial activism? How about U.S. v. Nixon where the Court ordered President Nixon to hand over Watergate-related tapes? I doubt Liberals would think that was judicial activism. And they would be right as it was just interpreting the limits of executive power as granted under the constitution. What about Brown v. Board of Education where the Court declared state laws establishing separate public schools for black and white students unconstitutional? I’ve never heard a Liberal claim that was judicial activism.
What this landmark case comes down to is whether with ObamaCare, the government may compel people to enter healthcare markets at which point government can regulate, under the commerce clause, how they consume health care and health insurance. By any reasonable reading of the Constitution and Supreme Court decisions since the Civil War ended, government cannot force people to do anything they do not wish to do (except perhaps serve in the military).
The High Court will hopefully acknowledge this and not worry about all of the catcalling that Liberals will do if upholding the Constitution goes against their jurisprudence.
-I.M. Windee
