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Go Home The Health Care Judicial Ping-Pong Continues

JONATHAN CHAIT JANUARY 31, 2011

The Health Care Judicial Ping-Pong Continues

BY JONATHAN CHAIT

A Florida judge has ruled that the individual mandate is unconstitutional, and has taken the further step of voiding the entire law (because Congress neglected to include a standard severability waiver.) I think the legal merits of this position are utterly absurd (see Jonathan Cohn's definitive piece on this question.) That aside, the pattern once again has held that every Republican-appointed judge has ruled against the law's constitutionality and every Democratic-appointed-judge has ruled for it. Now, the ultimate arbiter is the Supreme Court, where Republican appointees hold a 5-4 majority, though one of those 5 (Anthony Kennedy) is not a completely down-the-line Republican.

Given this divide, wouldn't it make sense to... let elected officials decide? That's the logic of judicial restraint, anyway, and it's logic conservatives used to employ about a host of topics. But that was before they gained the ability to win huge victories in the courts that they couldn't win at the ballot box.

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Isn't Rush Limbaugh's brother on the federal bench in The Show Me state? His determination would surely be the most laughable of them all.

- Bukharin

January 31, 2011 at 3:37pm

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So what's Kennedy's record on commerce clause stuff?

- timteeter

January 31, 2011 at 3:41pm

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The court found FDR's New Deal laws unconstitutional at one time too. I sure hope we don't have to go down that road again.

- AllanL5

January 31, 2011 at 3:54pm

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- Are they really going to piss off insurers by yanking the provision that provides them with healthier customers who currently postpone buying? I've seen some analysts claim private insurers may not be viable with a shrinking pool of less healthy customers, they need the mandate. Jeeze, that's why the mandate was the GOP alternative in the '90's...

- michaelg

January 31, 2011 at 3:59pm

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Amen AllanL5. Can't believe the human cost so-called "conservatives" are willing to impose on the American people -

- Sophia

January 31, 2011 at 3:59pm

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Ben Smith noted this portion of the ruling: "From the Vinson ruling: It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate givingthe East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place." Of course the issue then was taxation without representation and here the duly elected House and 60% of the Senate passed a bill signed by the duly elected president... What terrible logic.

- Jbryan

January 31, 2011 at 3:59pm

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Yes, the decision is wrong, but that's what we have courts for to decide cases like this. Everyone is all for judicial restraint when his or her ox is being gored.

- mlottman

January 31, 2011 at 4:08pm

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The Justicies needn't worry about sending the court in the wrong direction. They merely have to stamp a disclaimer on the decision that it can't be cited as precedent. Before Bush v. Gore, wasn't that the main difference between legislative law and Judicial Opinion, that the former wasn't bound by precedent? And good riddance to such small minded hobgoblins. We can get back to having a King while we're at it.

- Nusholtz

January 31, 2011 at 4:12pm

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"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate givingthe East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place." Yep. And how dare the government force me to pay for highways, bridges and schools! Tyranny!

- timteeter

January 31, 2011 at 4:37pm

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And the complete and utter 'insightfulness' of Chait is on full display with the following: "That's the logic of judicial restraint, anyway, and it's logic conservatives used to employ about a host of topics. But that was before they gained the ability to win huge victories in the courts that they couldn't win at the ballot box." 1. huge victories....they couldn't win at the ballot box ---- like the 63 seats they picked up in the house or the 680 they picked in state legislatures. 2. logic of judicial restraint --- too bad it doesn't really apply to constitutionality of far reaching legislation

- mr_rationale

January 31, 2011 at 6:36pm

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Wow. The gibberish from the egregious Heritage-written software program, codenamed "rat" is getting even worse. Who would have thought that possible? To the right, judicial activism is wrong only when it is practiced by the left.

- liberalref

January 31, 2011 at 6:55pm

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