A week ago the judicial debate over Obamacare was underway at the Supreme Court. After the nation jumped headfirst back into the healthcare debate the mainstream media tried their best to obscure the facts. The latest line from the MSM (in order to make the court, especially the conservative wing, look bad) is the idea that if Obamacare is overturned the court fiddled with judicial activism; however, if the court upholds Obamacare then it is simply doing its job.
This comes from the left’s anti-intellectual/political definition of judicial activism. They define judicial activism as any court stopping the legislative branch from creating law and doing what it wants. The problem with that definition (other than being immature and political motivated) is that it defines judicial activism as exactly what the judicial branch is set up to do. It is the third branch of government and in our system of checks and balances it is a check on the power of the legislature. The Supreme Court should be looking at the US Constitution which supersedes all other laws and determine if a federal law violates the rules in the Constitution. If a law is found to violate the Constitution the Supreme Court would be acting properly when striking down the law. IT would not be partaking in judicial activism.
Judicial activism is defined as judges becoming activists for their own political beliefs. When a judge interprets a law beyond the simple reading of the law and legislative intent in order to create a new right or law they are going beyond their constitutional role. The legislature is the only body that can create new rights because they are elected by the people and accountable to the people. Our founding fathers thought it best that judges not create new law or become activists from the bench because judges are not elected by the people.
With the semantics out-of-the-way, can we determine if a ruling on Obamacare is judicial activism or proper judicial decision-making? The answer is yes. By definition a conservative ruling would be proper decision-making. To make a conservative decision is to maintain the constitution as designed and intended by our founding fathers. A more liberal decision by the court to expand the definition of the commerce clause would be judicial activism. Therefore, the “correct decision” or “non-judicial activist decision” would be the more conservative decision.
However, framing the debate this way also changes our question. The question now becomes: is the government’s definition of the commerce clause a conservative definition.
Again, meaning it does not expand the definition of the commerce clause.
Or is it a liberal definition that expands the commerce clause beyond the intent of the drafters of the constitution. The government argues that in the interstate commerce clause of the US Constitution, the Federal Government has the ability to define commerce as any commerce taking place or about to take place. They argue that due to the special circumstance in the healthcare/insurance industry they can use the commerce clause to regulate customers before they enter into an actual transaction. No one denies that commerce is taking place at the point of transaction when one person hands over cash for a good or service. Moreover, no one denies that if that transaction happens between two individuals living in two different states it becomes interstate commerce that can be regulated by the Federal Government. However, now the Federal Government wants to argue that those who may engage in a transaction in the future should be considered actively engaging in commerce now and therefore can be regulated.
That is the crux of the Obama argument and it is quite a stretch. The Supreme Court has never found the definition of commerce to be that expansive or intrusive. With the plain reading of the law interstate commerce is defined as two or more individuals from different states participating in a transaction. Those who are required to purchase health insurance may not be actively participating in a transaction. For most people if we didn’t pay for our own health insurance we would rarely be actively engaging in any transaction concerning healthcare. Perhaps at most, once a year.
The government argument that virtually everyone engages in healthcare is a joke. Just because virtually everyone engages in healthcare commerce, I must buy health insurance ahead of time? The act of stating virtually admits that someone will not engage in healthcare commerce. If all individuals did engage in healthcare commerce than the government could simply state, “all people engage in healthcare”.
Clearly, from my argument above we can determine that judicial activism rests with those who would uphold the idea that citizens about to enter into a transaction are already engaging in commerce. Commerce has never been defined as a transaction yet to happen. That is because it is impossible for anyone, including the government, to objectively, with 100% accuracy, determine if a transaction is to take place in the future. Their admission that virtually everyone engages in healthcare commerce means that some will not. Therefore, those who will not will have their Constitutional rights violated because of the improper use of government. Also, because government cannot determine who will engage in healthcare commerce and who will not it therefore cannot force anyone to purchase health insurance.