In response to the tougher than anticipated questioning posed by the Supreme Court justices in last week’s oral arguments over the constitutionality of the 2010 health reform law’s individual mandate, many on the left are now urging the Court to refrain from “judicial activism” and uphold the law.
Alternatively, if the Court must strike down the mandate, proponents then argue that it must do so in conjunction with the myriad of insurance market reforms (guaranteed issue, community rating) as well, lest the policy framework of the law dissolve and the insurance market descend into an adverse selection death spiral. While it is encouraging to see renewed interest in the principles of judicial restraint, one wonders if those now extolling its virtues truly know its meaning.
Judicial activism, as it is typically understood, refers to a court imposing policy prescriptions through its rulings, not in the judiciary fulfilling its constitutionally designated role as an arbiter and a check on the authority of the other two branches of government. If anything, striking down the health reform law in its entirety would be an exercise in judicial restraint, not activism. This is for three very simple reasons:
(1) The Court does have a responsibility to assume that dully passed actions of Congress are constitutional, but this also implies a duty to discern congressional intent. Despite the fact that the final version of the 2010 law passed by just a single vote and without any Republican support, it is still a dully passed law and was signed by the president. However, the original version of the law contained a severability clause, which would allow the courts to strike down the individual mandate in isolation while leaving the rest of the law intact. This indicates that, not only did some lawmakers have misgivings about the prospects of eventual litigation, but that they viewed the mandate as part and parcel to the entire law. In removing the severability clause prior to final passage, the Court must reasonably assume that the Congress intended for the entire law to stand or fall on its own. This leads to point number two…
(2) The government agrees. The Obama administration doesn't deny that the individual mandate is part and parcel to the functionality of the entire policy framework. They correctly argued last week that removing the offensive provision in isolation would cause serious harm to the insurance industry. As such, they maintain that, rather than merely calling balls and strikes with respect to the constitutionality of the mandate, the Court should instead consider the policy implications. For this reason, the government argued that the individual mandate should only be struck down in conjunction with the rest of the insurance market provisions to forestall the development of an adverse selection death spiral. However, it is not the court's place to make unconstitutional policy work; its job is to determine the acceptable limits of Executive and Legislative authority and to arbitrate disputes within those limits. This leads to point three…
(3) Striking down the whole law would be an exercise in judicial restraint, not activism. The government insists that, because its policy is unworkable without a provision that the Court may find unconstitutional, the Court therefore has a responsibility to modify the law in such a way that is both acceptable to the defined limits of federal power and would not result in adverse consequences. Asking the court to make policy in such a way would be an exercise in judicial activism. As such, if one is truly concerned with an activist judiciary, the two most palatable options should be an upholding of the entire law, or striking it down in full.
Of course, if one is equally concerned with liberty, there should really only be one option.