Lawyers Dispute Obama’s Claim of 'Judicial Activism'

Tuesday, 24 Apr 2012 09:44 AM

By Greg McDonald

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Two lawyers who represent 26 states seeking to have Obamacare overturned are warning that a Supreme Court decision upholding the purchase mandate for health insurance would open the door to other government-imposed mandates across a variety of industries.

Writing in a Wall Street Journal op-ed piece Tuesday, the lawyers, David R. Rivkin Jr. and Lee A Casey, also take issue with President Barack Obama’s assertion that a decision striking down the mandate would amount to an act of “judicial activism” on the part of the justices.

“If Congress can regulate Americans as future consumers (and everyone is a future consumer in dozens if not hundreds of markets), then it could equally impose any number of mandates on the citizenry today as a means of regulating the transactions in which they are expected to engage tomorrow, next week, or in 40 years,” said Rivkin and Casey.

Taken to the extreme, they said a Supreme Court ruling upholding the Obamacare requirement that Americans must purchase health insurance or be penalized could force consumers to prepay for all sorts of commodities and services.

True, they suggested, such mandates would drive more people into a market and might result in lower costs. But they insisted the idea of government forcing “prepayment mandates” on people is simply unconstitutional and would fare no better in the United States “than it did in the Soviet Union.”

“Although the policy merits of various mandates could be honestly debated, there simply is no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot,” the two wrote.

“If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it,” they continued. “That is not judicial activism. It is the fulfillment of the judiciary’s constitutional duty.”

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