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Health Care Ruling Shows Judicial Activism Is Alive and Well -- and Living on the Right

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Monday's federal court decision striking down the landmark Affordable Care Act (ACA) shows how much the political right has embraced judicial activism. After years of denouncing liberals for seeking to overturn the will of the people through court decisions, conservatives have fully adopted that very same approach to laws they don't like. Unable to repeal the health care reform bill through the elected branches, they want the judiciary to do their bidding for them.

Unfortunately, some federal judges are going along.

Approximately a dozen federal courts have already upheld the ACA from constitutional challenges. Yet the ruling out of Florida will undoubtedly receive much more media attention than those earlier rulings. The media is always much more interested in outlandish rulings striking down legislation than thoughtful ones upholding legislation.

The ruling out of Florida is unsurprising in one respect: the judge, a conservative Republican appointee, had already signaled his hostility to the law in hearings a few months ago. So people who follow the health care litigation have been waiting for him to issue the ruling that came down Monday.

It was anticipation over this ruling -- and real concern about how the judge would likely distort longstanding case law to reach it -- that led over one hundred law professors to sign a statement last week expressing their view that the ACA is constitutional. Their statement pointedly observed that the "current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law."

The basis for the Florida court's ruling was that Congress did not have the power to require people to obtain health insurance. While Congress does only have limited powers, one of those powers enables Congress to regulate "commerce... among the several States." This "commerce power," as it is known, enables Congress to regulate aspects of the economy that would evade easy solution by regulation at the state level alone.

The national market for health care is in precisely the sort of crisis that mandates a federal, not state, solution. This market consumes more than 17% of the annual gross domestic product and amounts to over $2 trillion annually. Clearly, the ACA regulates interstate commerce and no state law is going to solve it's current problems.

The judge in Florida said that people refusing to buy health insurance were "passive" and thus beyond Congress's reach. Only people who affirmatively choose to undertake some sort of activity, the court said, were subject to federal lawmaking. Yet every person required to obtain health insurance will actively seek out health care services at some point. In any given year, a majority of Americans see a doctor. Over the course of a lifetime, all of us receive medical attention.

That Congress lacks the power to require people to buy a product when the national interest demands it would surprise the Founding Fathers. They required people to do just that. In the second Militia Act of 1792, they required individuals to outfit themselves with a military-style firearm and ammunition. This was the first "individual mandate" and one had to obey even if one had to go out and buy a gun. Being passive didn't put you out of Congress's reach.

After years of telling Americans to follow the original intent of the Framers, now the same people want us to ignore what the Framers actually did.

Besides, the ACA doesn't regulate "inactivity." It merely requires that, because all of us use health care services, we have the ability to pay for it. Without the requirement to have insurance, people will seek out medical help without being able to afford it -- imposing costs on all of us taxpayers and insurance policyholders who do obtain coverage.

Funny thing is, health care reforms' opponents are the same people who for years have been insisting we need more personal responsibility.

Of course, Monday's ruling doesn't matter very much. The only votes that really count are on the Supreme Court. What Monday's ruling does suggest, however, is that conservative judges are more than willing to break from longstanding precedent and their own favored policies of originalism and personal responsibility when push comes to shove. Or when faced with a law favored by Democrats.