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Judicial legislation, or activism, at its best

Judicial legislation, or activism, at its best

Posted: Thursday, July 12, 2012 11:15 am
By: Dr. Harold Pease, Liberty Under Fire

With respect to the Supreme Court’s ruling on National Health Care, Justice Anthony M. Kennedy said that the court majority “regards its statutory interpretation as modest.  It is not.” Then, noticeably disturbed by the ruling, added.  “It amounts to a vast judicial overreaching.  It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”
Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning.  George Washington warned us in his farwell address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”  Usurpation, in his day meant twisting things around to extract meaning that was initially not there.
So what did Justice Roberts twist or legislate that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress?
At the top of the list, his rewrite called it a tax when Congress never passed it as a tax and the political party passing it, and their President, Barack Obama, emphatically resisted any description of it as such.
Rich Lowry, a political commentator, said it best.  “Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.”
In short, “Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress” (The Umpire Blinks, by Rich Lowry, The Corner, National Review Online, June 29, 2012).
Judicial legislation or activism is not new. The desire for the court to “legislate” through decisions expressed itself more fully the last sixty years as it attempted to “right” perceived wrongs instead of sending the faulted legislation back to the legislative branch for correction by the peoples’ representatives.  By altering legislative law it has moved into state prerogatives such as education, state residency requirements, and imposed federal standards of procedure on local police to name but a few.  In broadening its power base, far beyond Constitutional restraints, it has almost destroyed the idea of two co-equal governments, one federal the other state, known as federalism.
In the National Affordable Healthcare Act the Supreme Court has effectively retrained further encroachment (mutilation) of the Commerce Clause but opened wide the interpretive door that the federal government can control anything it taxes. So, does this mean that if the federal government wishes to control free speech, press, assembly, religion, guns, or any other activity, it first simply levies a tax on that activity?  Apparently judicial legislation creates a “need” for additional judicial legislation.  God help us!!
We must return to our foundation the U.S. Constitution as written, without all the judicial or executive alterations that go beyond this document.  According to Article I Section I, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  
There is no authority for either of the two other branches of government to make law — any law; and law made by Congress is specifically listed in Article I, Section 8 where 18 clauses identify the powers of the federal government.  So, even Congress cannot make any law they like. The issue of health is not noted and is therefore, as per Amendment 10, entirely a state issue. The Supreme Court majority ruling ignored this long-term clarity and instead chose to violate the document they are charged with upholding.
Editor’s note: Dr. Harold Pease considers himself an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, visit

WCP 7.10.12


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