JONATHAN CHAIT JANUARY 31, 2011
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.