Conservative Activist Judge Makes Conservative Activist Decision

Bill Scher

In a completely expected development, a conservative activist judge made a conservative activist decision, ignoring decades of judicial precedent to declare the main provision of the health reform law — requiring most Americans to purchase health insurance — unconstitutional.

The Supreme Court has long held that our federal government has the authority to enact laws that regulate activities which impact interstate commerce. The health care system is woven into our entire economy. And virtually every American citizen — insured or uninsured — participates in the health care system in some way.

The conservative activist legal attack is to claim the Constitution’s “Commerce Clause” doesn’t apply to “inactivity” — a decision not to buy health insurance.

But two other judges have already ruled — to much less media attention — that such illogic flies in the face of economic reality. Most recently, Judge Norman Moon wrote in upholding the law:

…by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.

The fact that a man who has a “long history in Republican politics,” and was appointed by President George W. Bush, accepted a conservative attack on long-standing legal precedent by creating a massive legal loophole to prevent our government from acting in the public interest, says nothing about the actual merits of the claim.

However, since there are four conservative activist judges on the Supreme Court — one short of a majority — we cannot be completely sanguine about the prospect for the Court to decimate the legal underpinning of a representative and responsive government.

And we cannot assume that the non-activist judges are completely sealed off from the public discourse. We cannot allow the right-wing to smother the media landscape with its hatchet job on the Constitution. We must speak out in favor of our Constitution, as it was written by the founders, which empowers our government to “regulate,” to act, and to represent the public will.

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