James A. Christophersen and Phillip L. Jauregui
Liberal defenders of judicial activism have developed some interesting talking points in recent months, especially in light of two recent District Court rulings on the Patient Protection and Affordable Care Act (PPACA, aka “ObamaCare”). As these courts have rightly recognized the unconstitutional overreaches of ObamaCare’s individual mandate, liberal voices have suddenly risen in chorus decrying these decisions as cases of “conservative judicial activism” and “judicial overreach.” While it is true that “activism” can occur in favor any political philosophy, the measure of activism is based on constitutional criteria not political criteria.
Perhaps President Bush provided the most succinct and constitutionally correct description of the problem of judicial activism. He rightly described judicial activism as occurring when judges “legislate from the bench.” This description accurately captures the constitutional perversity of judicial activism. Article I, Section 1 of the Constitution provides that in federal terms “all legislative Power” is given to Congress. Furthermore, Article III, gives judges no authority to legislate but merely to decide cases and controversies. Judges have authority to judge “from the bench.” But when judges legislate “from the bench,” they usurp the fundamental power of our constitutional form of government; that is Article I, Section 1’s exclusive grant of legislative power directly to the People’s elected representatives. Political commentary often reaches the errant conclusion that any and all judicial actions are “activist” if they declare a statute “unconstitutional.” This “analysis” – if it may be called that – entirely misses the point. Take the following two examples:
Example A: Proper Judicial Declaration of a Statute Unconstitutional
Suppose the State of Texas passed a statute that: “The Governor of Texas shall be Commander-in-Chief of the Army and Navy of the United States.” Suppose the U.S. Constitution says: “The President shall be Commander-in-Chief of the Army and Navy of the United States.” It would be a proper use of judicial power for a judge to declare that the Texas statute violated the constitution.
Example B: Improper Judicial Declaration of a Statute Unconstitutional
Suppose the State of Texas passed a statute that: “The Governor of Texas shall give an annual report to the Texas Legislative branch on the state of the State of Texas. Suppose the U.S. Constitution says: “The President shall be Commander-in-Chief of the Army and Navy of the United States.” It would be an improper use of judicial power for a judge to declare that the Texas statute violated the constitution.
Comparison of Examples
The judge in example A was faced with an irreconcilable conflict between a statute and a constitutional provision and rightly chose to side with the constitution and refused to apply the statute. However, the judge in example B was not faced with an irreconcilable conflict but rather faked a conflict in order to justify the result of refusing to apply a statute.
The judge in example B is an activist because he inserted his own preferences into the lawsuit and presumed to legislate from the bench. The judge in example A is not an activist judge because, even though he did refuse to apply a statute, his actions were required by his duty to uphold the constitution first. Actual instances of judicial activism are typically far more complex and often better concealed than the example here, but the basic principal is consistent.
Application to Rulings on ObamaCare
A judicial declaration that ObamaCare is unconstitutional is not “activist” because ObamaCare is irreconcilably in conflict with the constitution and, accordingly, must be declared unconstitutional.
ObamaCare includes an “individual mandate” requiring that individuals must purchase health insurance. Specifically, ObamaCare mandates that every individual in America “shall for each month beginning after 2013 ensure that the individual … is covered under minimum essential coverage for such month,” and “[i]f an applicable individual fails to meet thi[is] requirement … there is hereby imposed a penalty.” See Pub. L. No. 111-148, § 1501(b).
This individual mandate essentially requires individuals to enter into a contract with private companies to purchase health care insurance. This statutory requirement should be enforced by courts, unless it is irreconcilably in conflict with a constitution provision.
It is. Here’s why.
The constitution provides that the federal government has limited powers that are spelled out in the constitutional text and that if any powers are not specifically listed in the text of the constitution then those powers are not federal powers at all, but rather are left to the states governments or to the citizens. In short, Congress does not have the power to pass ObamaCare unless it is allowed within the text of the Constitution.
Supporters of ObamaCare claim that it is allowed under the constitution because the constitution gives Congress the power to regulate interstate commerce. Specifically, the Constitution says that Congress has the power “to regulate commerce … among the several states ….” Art. I, § 8. But neither the text of the constitution, nor court decisions purporting to follow it have ever required that a person who is not participating in commerce must affirmatively enter into and engage in commerce. That is what the “individual mandate” of ObamaCare does; it forces people to enter into commerce and to purchase health insurance.
The constitution says that Congress can regulate commerce, but it does not say that Congress can create commerce, or force people to engage in commerce so that Congress can then “regulate” them. The “individual mandate” goes well beyond “regulating” commerce and forces people to engage in commerce, by forcing them to buy health insurance. This requirement is not an exercise of one of the limited and enumerated powers of Congress, and is not supported by the clear text of the constitution. Accordingly, the ObamaCare individual mandate is simply unconstitutional.
Federal judges are sworn to decide cases according to the law. In deciding a constitutional challenge to ObamaCare, a federal judge would properly find that the statute is irreconcilably in conflict with a constitutional provision, and that federal judge must side with the constitution and refuse to follow the statute. A federal judge who declares the Health Care “individual mandate” unconstitutional is not a judicial activist, but rather a constitutional judge. Conversely, judges who hold the law to be constitutional are essentially disregarding the authority of the constitution and allowing congress to seize powers not granted to them. For the American system of “check and balances” to work, each branch of government must hold the other branches accountable for improper power grabs.
 One of President Bush’s biggest applause lines during the 2004 campaign was: "We stand for judges who faithfully interpret the law, instead of legislating from the bench.” See, Washington Post, August 14, 2004, p. A2; http://www.washingtonpost.com/ac2/wp-dyn/A3650-2004Aug15?language=printer.
 The Tenth Amendment to the U.S. Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”