Friday, October 08, 2010

When Liberal Activist Judges Go Wild

David Kopel at The Daily Caller has a nice layman's analysis of the recent Federal court decision in Thomas More Law Center vs. Obama, a case which challenges the constitutionality of Obamacare; specifically, the law's mandate that almost everyone carry health insurance. Failure to comply with the mandate results in a hefty fine.

As noted by Kopel, the District Court in Michigan upheld Obamacare on the basis that Congress acted within its scope of power under the Constitution's Commerce Clause. The underlying premise for this basis couldn't be any more ridiculous and without legal grounding:
The choice not to buy a federally-designed insurance product is not an activity at all. It is inactivity. Judge Steeh, however, said that not buying insurance is an “economic decision.” Which is true, since all inactivity, including not purchasing products, is in a sense an economic decision. If you’re sleeping, you’ve made the “economic decision” not to spend your time working to make money.

So according to Judge Steeh, Congress can use the interstate commerce power to force you to make the “economic decision” to buy a bureaucratically-designed insurance policy that you don’t want.

However, the Supreme Court has never held that Congress can regulate any “economic decision.” Such a ruling would convert our Constitution of limited, enumerated powers into a grant of unlimited central power. The American people of 1787 never would have ratified unlimited central power, nor do Americans support such power today.

That Judge Steeh had to invent the “economic decision” theory demonstrates that a conscientious judge who wants to uphold the health control law can’t find a plausible way to do so within existing Supreme Court doctrine.
This, of course, isn't the only legal challenge being made to Obamacare, and it's more than likely that Judge Steeh's decision will be appealed. It is, nevertheless, distressing to see the blatantly injudicious lengths that some of these judges will go to, e.g., making legal doctrines up out of whole cloth, in order to sustain an obviously unconstitutional law they find ideologically appealing.

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