The New York Times’ Judicial Activism
This morning’s New York Times carries an editorial denouncing Monday’s ruling striking down the entire health care law as “a breathtaking example of judicial activism and overreach.” In reality though, the editorial itself shows how the Times believes in a zealous brand of judicial activism. First, the editorial concedes that the ruling “may well be right that the [individual] mandate” that was the basis for the decision “is essential to guaranteeing coverage for people with pre-existing conditions because it will force healthy people into the insurance pools and thus keep premiums down.” The Times essentially admits that, if the mandate is ruled unconstitutional, the other new insurance regulations are so intertwined they must also be stricken – meaning the mandate cannot rise and fall on its own. Such a position would by definition require a judge to interpret precisely WHAT regulations are so intertwined with the mandate that they must be stricken.
The editorial then goes on to argue that the law’s lack of a severability clause was “much more likely…an error in the closing Congressional struggle” than a deliberate decision made by Congress. This argument further illustrates how the editorial calls for a virulent form of judicial activism: The Times wants a judge to determine what portions of the law not related to insurance regulations Congress intended to preserve if the mandate was stricken – even as it simultaneously argues that Congress was too rushed to bother to include a severability clause in the legislation. Some may find that position both inherently contradictory, as well as bad policy – encouraging judges to legislate from the bench.