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Townhall...
The “Judicial
Activism” Ploy
By Thomas Sowell
Now that two different federal courts have declared ObamaCare
unconstitutional, the administration’s answer is to call the courts
guilty of “judicial activism.”
Barack Obama has a rhetorical solution for every problem. Remember the
repeated claims of “shovel-ready” projects that needed only federal
stimulus money to get started? Last year the President quietly admitted
that there were not many “shovel-ready” projects, after all.
But the phrase served its political purpose at the time-- and that was
obviously all that mattered. Now, in the wake of rulings by two
different courts that ObamaCare is unconstitutional, rhetoric is being
mobilized again, without any fussy worries about facts.
“Judicial activism” is a term coined years ago by critics of judges who
make rulings based on their own beliefs and preferences, rather than on
the law as written. It is not a very complicated notion, but political
rhetoric can confuse and distort anything.
In recent years, a brand-new definition of “judicial activism” has been
created by the political left, so that they can turn the tables on
critics of judicial activism.
The new definition of “judicial activism” defines it as declaring laws
unconstitutional.
It is a simpler, easily quantifiable definition. You don’t need to ask
whether Congress exceeded its authority under the Constitution. That
key question can be sidestepped by simply calling the judge a “judicial
activist.”
A judge who lets politicians do whatever they want to, whether or not
it violates the Constitution, never has to worry about being called a
judicial activist by the left or by most of the media. But the rest of
us have to worry about what is going to happen to this country if
politicians can get away with ignoring the Constitution.
The Tenth Amendment to the Constitution says that the federal
government can do only what it has been specifically authorized to do
by the Constitution. Everything else is left to the states or to the
people themselves.
Nevertheless, back in 1942, the Supreme Court said that because the
federal government has the right to regulate interstate commerce, the
Department of Agriculture could tell a farmer how much wheat he could
grow, even if the wheat never left his farm and was consumed there by
his family and their farm animals.
That case was a landmark, whose implications reached far beyond
farming. If the meaning of “interstate commerce” could be stretched and
twisted to cover things that never entered any commerce, then
“interstate commerce” became just a magic phrase that could make the
Tenth Amendment disappear into thin air.
For more than half a century, courts let Congress do whatever it wanted
to do, so long as the politicians said that they were regulating
interstate commerce.
But there was consternation among politicians and the media in 1995,
when the Supreme Court said that carrying a gun near a school was not
interstate commerce, so that Congress had no power to regulate it--
even though states had that power.
Howls of protest went up from politicians and the media because the
Supreme Court voted 5 to 4 in favor of an ordinary common-sense reading
of the Constitution, instead of the clever word games that had been
used for so long to circumvent the Tenth Amendment.
ObamaCare is another piece of Congressional legislation for which there
is no federal authority in the Constitution. But when someone asked
Nancy Pelosi where in the Constitution there was any authority for
passing such a law, her reply was “Are you kidding?”
Two federal courts have now said that they are not kidding.
The ultimate question is whether the Supreme Court of the United States
will back them up. That may depend on how soon the case reaches the
Supreme court.
If the issue wends its way slowly up through the Circuit Courts of
Appeal, by the time it reaches the Supreme Court, Obama may have put
more of his appointees there-- and, if so, they will probably
rubberstamp anything he does. He would therefore have done a complete
end-run around the Constitution and be well on his way to becoming the
Hugo Chavez of North America.
Read it at Townhall
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