- The Washington Times - Tuesday, December 14, 2010

The left reacts to a court decision striking down a key provision of Obamacare with six silly arguments:

Born-again textualism

Timothy S. Jost, the New York Times: Judge [Henry] Hudson has effectively rewritten the Commerce Clause, which nowhere contains the word “activity.” This is a version of an argument that has been rejected before. In two major Commerce Clause cases, Wickard v. Filburn and Gonzales v. Raich, the party challenging the statute claimed to be outside of the stream of commerce, but the Supreme Court held that the party nevertheless had an effect on interstate commerce. The decision not to insure is not “inactivity,” as Judges Norman K. Moon and George Caram Steeh have already held in other federal court cases raising the same issue. None of us can choose not to become sick or injured. If individuals choose not to buy insurance and then need health care, they will either buy insurance then (which they will be able to do once pre-existing-condition clauses are outlawed) or simply receive the care, pay for what they [use], and pass the remaining costs on to the taxpayers and to responsible persons who insure. This happens each year to the tune of tens of billions of dollars. The decision to not buy insurance is commerce, and Congress can regulate it.

It’s judicial activism!


E.J. Dionne, The Washington Post: “Every judge I appoint,” George W. Bush declared, “will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.” Oh, really? Well, Judge Hudson, a Bush appointee, has just “amended” the health-care law by striking down the provision requiring individuals to buy health insurance. That sure sounds like “legislating from the bench” to me. Aren’t the elected branches of government owed a lot of deference by the courts in enacting social policy?

It will destroy Social Security!

Nick Baumann, Mother Jones: Unfortunately, most of the commentary on Hudson’s decision focuses on its immediate impact on the health care law. But the issues at stake in Cuccinelli v. Sebelius (Ken Cuccinelli is the conservative attorney general of Virginia; Katherine Sebelius is President Obama’s Secretary of Health and Human Services, or HHS) are actually far broader. Hudson’s ruling doesn’t just show how the Supreme Court could gut the health law - it shows how the court could neuter the entire federal government. The Constitution’s commerce clause says that Congress has the power to “regulate Commerce with foreign Nations, and among the several States.” It is the fundamental underpinning of nearly every federal law regulating the economy. Limiting its scope undermines the whole project of government intervention in the economy.

Republican ideas are ALL constitutional

Scott Nance, The Democratic Daily: The mandate provision began as a Republican idea, pushed by former Massachusetts Governor Mitt Romney, as Romney steered state-level health reform in the Bay State. Sen. John McCain (R-Ariz.), the 2008 GOP nominee for president, also once supported a health mandate.

Facts don’t matter, Part 1:

Josh Marshall, Talking Points Memo: A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. Late Update: A number of readers have taken issue with my saying that “no one” took this idea seriously. It would probably be better to say that very few experts on constitutional law thought there was much chance that the law could be successfully challenged on constitutional grounds. Some chance, but not much. And I think that is unquestionably true.

Facts don’t matter, Part 2:

Adam Serwer, American Prospect: My personal belief is that Republicans hate the law and want to see it gone, and so the conservative justices on the [Supreme Court], with the possible exception of Anthony Kennedy, will happily oblige them. The justices’ identities are simply more partisan than we acknowledge - does anyone remember [Antonin] Scalia decrying the 17th Amendment before it became a Tea Party cause? UPDATE: The always helpful Josh Barro points out that Scalia was big on repealing the 17th Amendment way before it was cool. Doesn’t really change my analysis here, the Court is partisan, and that will weigh more on how it rules on [Obamacare] than legal precedent.

David Mastio is the deputy editorial page editor of The Washington Times.