Liberals Describe Monday’s Health Care Ruling As ‘Judicial Activism’ by Conservatives

By Susan Jones | February 1, 2011 | 11:36am EST

( - A federal judge's decision to strike down the Democrats' health care law is a "deviation from decades of settled law" and the conservative version of "judicial activism," liberals say.

But conservatives say striking down an unconstitutional law is not the same thing as legislating from the bench.

U.S. District Judge Roger Vinson of the Northern District of Florida ruled on Monday that the individual mandate requiring individuals to purchase health insurance is unconstitutional, and because this provision cannot be severed from the law's other provisions, the entire health care law must be struck down.

The White House called the ruling "a plain case of judicial overreaching."

According to Stephanie Cutter, deputy senior adviser to the president, Judge Vinson was wrong to declare the entire law null and void, even though he found only one provision -- the individual mandate -- unconstitutional. "This decision is at odds with decades of established Supreme Court law, which has consistently found that courts have a constitutional obligation to preserve as a much of a statute as can be preserved," Cutter blogged on Monday.

"We don’t believe this kind of judicial activism will be upheld, and we are confident that the Affordable Care Act will ultimately be declared constitutional by the courts," Cutter wrote.

The conservative Family Research Council argued in its friend-of-the-court brief that if the "individual mandate" is unconstitutional, then the entire health care law rests on an unconstitutional foundation. And – “if the foundation crumbles, the whole law falls," said FRC's Special Counsel Ken Klukowski, who was quoted in Judge Vinson's opinion.

"The U.S. Constitution doesn't empower the federal government to strong-arm its citizens into spending their own money on health insurance," said the FRC. The group also opposes the law because it funds abortion with taxpayer dollars.

Liberal groups also weighed in:

“The idea that Congress lacks the authority to regulate [the health care industry] is a truly astonishing proposition,” said Walter E. Dellinger, a member of the American Constitution Society's Board of Advisors. He spoke Monday on a conference call hosted by the American Constitution Society and the liberal Center for American Progress.

“The regulation at issue here (the individual mandate) is part of a comprehensive scheme to regulate economic and commercial matters that affect one sixth of the national economy,” said Dellinger. “This is a decision with such radical implications that I’m confident it will be overturned.” Dellinger noted that major pieces of legislation -- including the Social Security Act -- were routinely struck down by courts before they were upheld.

Congress “made a rational decision to deal with...the largest sector of our economy, that has very serious problems, and Judge Vinson shows absolutely no deference to Congress,” Tim Jost, a professor at Washington & Lee School of Law, said in Monday's conference call. “This is unelected activist judges deciding what is best for our economy,” he added.

Last week, more than 125 law professors signed a statement distributed by American Constitution Society declaring Congress’ power to regulate the health care market as “unambiguous.”

“Legal experts nationwide are worried about the bald-faced judicial activism of the lower court in Virginia,” UCLA law professor Adam Winkler said in a press call discussing that statement.

The American Constitution Society for Law and Policy describes itself as one of the nation's leading progressive legal organizations.

Andrea Lafferty, executive director of conservative Traditional Values Coalition, said the Florida court ruling is the second to "shut down the unconstitutional mandates embedded in the massive federal takeover of the health care industry."

The winners -- if the Supreme Court backs Judge Vinson -- would be "Working families, defenders of the Constitution, and millions of Americans who will have freedom to enjoy a health care plan that best suits their needs," Lafferty said.

Supporters of the health care law argue that for that law to work, everyone who can afford it must be required to carry some form of health insurance, since everyone eventually participates in the health care system.

According to White House adviser Cutter, "Individuals who choose to go without health insurance are actively making an economic decision that impacts all of us. People who make an economic decision to forego health insurance do not opt out of the health care market. As Congress found, every year millions of people without insurance obtain health care they cannot pay for, shifting tens of billions of dollars in added cost onto those who have insurance and onto taxpayers. There can be no doubt that this activity substantially affects interstate commerce, and Congress has the power to regulate it."

Cutter also noted that "unless every American is required to have insurance, it would be cost prohibitive to cover people with pre-existing conditions," as the health care law does.

The House of Representatives passed a bill repealing the health care law last month, and as of Monday, all 42 Republican senators had signed on to a repeal bill in that chamber, although they lack the numbers needed to bring the bill to a vote.

Both sides agree the law ultimately will be decided by the U.S. Supreme Court.

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