Friday, April 20, 2012

Obamacare and Judicial Activism

Writing in the Wall Street Journal this morning, columnist Alan Blinder repeated familiar Democrat talking points about the Supreme Court and judicial activism.  Discussing the interplay between Obamacare’s individual mandate and the insurance “reforms” included in the law, Blinder asked “what happens if the justices void the mandate but leave the insurance reforms in place?  The answer is: We get incoherence.  Which, of course, is why you don’t want judges making economic policy.”

On this point, Blinder is half-right at least.  Judges should NOT make economic policy.  But the “solution” to the problem of judges not making economic policy should not involve blithe acceptance of a new and unprecedented mandate for individuals to buy a product as a condition of their existence, merely because Congress said the mandate was “essential” to make the law’s otherwise unsustainable new regulations work.

Rather, the position that does not involve judges making economic policy was one adopted by Republican senators in an amicus brief to the Court – namely, that if the Court strikes down the individual mandate, all of Obamacare must necessarily fall.  In the absence of such a ruling from the Court, the alternatives have ranged from the speculative – i.e., what parts of the law would be fiscally sustainable without the mandate? – to the seemingly absurd – Justice Breyer’s self-described “pipe dream” attempting to have lawyers argue what parts of Obamacare’s 2700-page Humpty Dumpty could be put back together again. (Because really, do we need MORE backroom deals involving Obamacare…?)

To Democrats mortified at the prospect of the Court striking down all of Obamacare, we can offer three helpful hints:

  1. If you want portions of the law to be severed if struck down, include a severability clause.  Democrats had every chance to do so – the House version of Obamacare included such language – but didn’t.  Liberals have absolutely no right to blame the Supreme Court if the Court decides to strike down the entire law, rather than trying to pick and choose which provisions to keep, in what would likely be a futile attempt to try and “fix” the mess Democrats themselves created.
  2. Read the bill.  While judges should in no event make economic policy, it’s somewhat difficult to argue that Congress is better placed to do so when multiple Members state publicly that reading the bill is a waste of time, because “we have to make judgments very fast,” and because “we hire experts” to read the bill instead.  Reading the bill is also helpful in ascertaining prior to passage whether a severability clause may be needed.  (See point #1 above.)
  3. If you ever again get tempted to pass a 2700-page bill the American people don’t support, just.  Don’t.  Thankfully, some Members of Congress may have already learned that lesson – the hard way.