Using the Courts to Kill Obamacare
In the wake of the Democrats' victory over health care reform, Republicans seem to be willing to abandon their long-standing opposition to judicial activism for the purpose of killing Obamacare.
In the wake of the Democratic passage of health care reform, conservatives now seem ready to throw principle to the wind by heading to the courts. A mere seven minutes after president Obama signed his bill, thirteen attorneys general filed a lawsuit against the federal government on the grounds that the healthcare bill is unconstitutional.
One of the backbones of the conservative movement is its opposition to judicial activism. Now, however, the right’s decision to run to the courts to resolve the healthcare debate as well as the recent conservative embrace of the decision in D.C. v. Heller suggests that conservatives are all talk and no action when it comes to judicial philosophy. Conservatives often rail against the evils of liberal attempts to legislate through the courts. The pro-life movement's most reasonable argument against Roe is and remains that the decisions substituted the will of a judge in an area that should have been decided by the voters of each individual state. Conservatives have long criticized Earl Warren for ignoring the constitution to pursue his own social agenda.
Yet, the Supreme Court's decision in District of Columbia v. Heller has been embraced by conservatives throughout the country as a landmark victory for the movement. In the stampede to celebrate the victory of gun rights, many conservatives failed to consider the peculiar nature of the victory: the decision, authored by the Court's most outspoken opponent of judicial activism (at least theoretically), struck down a law passed by democratically elected representatives of the District of Columbia. Ensuing challenges would similarly throw out other laws passed by legitimately elected city and state governments all across the United States. This dichotomy bothered two of our most prominent conservative federal judges. The 7th Circuit’s Judge Richard Posner argued that Justice Scalia created a right that is not in the constitution. Posner wrote that:
“The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.”
The 4th Circuit’s J. Harvie Wilkinson III went a step further, arguing that Heller “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.” Conservatives largely ignored these observations, content to celebrate the outcome and ignore the process.
The conservative position has traditionally been that barring egregious violations of our nation's founding document, the court should defer to the will of the people as expressed by their elected officials. Having been unable to stop the Democrats from passing health reform, conservatives now seem to have abandoned this position. Putting aside the fact that there is almost no precedent that suggests that the court would find against the legislation, seven minutes is hardly enough time to reflect over whether we are doing what we've always purported to hate: legislating through the courts.
Rush Limbaugh once said that “Liberals attempt through judicial activism what they cannot believe at the ballot box.” Yet on these two high profile issues: gun rights and health reform, the use of the courts to challenge legislation that was passed by representatives of the voters has generated almost no internal debate among purported conservatives. In fact, the silence is deafening. Regardless of whether these suits are right or wrong, conservatives must at least be able to acknowledge that these actions seem to violate our own principles to not legislate via the courts. Yet, there has been almost no internal debate. Our hypocrisy is palpable, and this silence should embarrass us all.