Freedom Line Blog

Last month, we explained why overturning ObamaCare’s individual mandate would not amount to “judicial activism” as liberals hypocritically contend.  Quoting Alexander Hamilton in The Federalist Number 78, we noted that, “The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”   For the Supreme Court to refrain from overturning the individual mandate due to timidity or political calculation would effectively erase the interstate commerce clause and its limiting principle out of the text of the Constitution, an act of supreme judicial arrogance and activism.

Writing in today’s Wall Street Journal, former Reagan and George H. W. Bush attorneys David Rivkin, Jr. and Lee Casey highlight another manner in which upholding, rather than overturning, ObamaCare’s individual mandate would constitute judicial activism.  Namely, because upholding it would eliminate any limiting commerce clause principle, courts would suddenly possess even greater future power to decide on an arbitrary case-by-case basis which federal laws satisfied their undefined discretion:

There is virtually no economically unrealistic regulation – that forces companies to produce goods nobody wants to buy, or sets artificial prices – that could not be salvaged at least in the short run by an offsetting purchase mandate of some kind…  Although the policy merits of various mandates could honestly be debated, there is simply no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot.  In fact, if the courts were to scrutinize such mandates, as ObamaCare defenders suggest, striking down those they considered to be too onerous or preposterous (such as a “broccoli mandate”) the judges truly would be engaged in illegitimate judicial activism.”

Thus would Potter Stewart’s infamous “I know it when I see it” become the rule in every instance of potential Congressional overreach, and a tool for unrestricted future judicial activism.