A Bad Day for Obama's Health Mandate

Get ready for Democrats to attack the ruling striking down the individual mandate as an act of conservative judicial activism.

Today, Judge Hudson issued his opinion in the Virginia challenge to the Affordable Care Act.

If it has not started already, look for Democrats on the Senate Judiciary Committee to label this an act of conservative judicial activism.  This is not fair.

First, given the novel legal issues involved, the grants by Democratic appointed judges of motions to dismiss in other cases are far more indicative of an activist mindset.

And while I am partial to conservative efforts to undo the Affordable Care Act, the claim that this is a victory for liberty seems overwrought.  Insofar as judges are responsive to internal and external institutional pressure, likening this opinion to a rejection of tyranny could fatally undercut support for plaintiffs' positions among swing judges.

Finally, conservatives should now ask CBO to re-score health care reform. To the extent that the lack of a mandate will increase the cost of coverage in exchanges (due to people waiting to obtain coverage until they are sick) the deficit impact of the reform likely just went up significantly.