Judicial Activism vs. Bad Decisions
Apr 02, 2012 | 2645 views | 0 0 comments | 16 16 recommendations | email to a friend | print
What gives Congress the ability to pass a law that requires people to purchase health insurance?

On its face, there is no language in the Constitution that talks about either health care (specifically) or the ability for the legislature to coerce people into buying things (theoretical). The government is trying to make the argument that even though there is no language regarding this kind of regulatory activity, there is precedent that comes close.

In Wickard v. Filburn, for example, the Supreme Court upheld a law that allowed Congress to limit the amount of wheat that farmers could produce. The thought was that by limiting the amount of wheat produced, prices would go up and help the farmers.

The case came about when Roscoe Filburn produced more wheat than was allowed by law, even though he was only using the extra wheat for his family’s personal consumption and not putting it on the market. The Court held that if all farmers grew more wheat to consume personally, the price would drop. He was coerced to not grow a certain legal product on his own property.

Was the Court out of bounds to side with Congress on that matter? Kermit Roosevelt (great grandson of Teddy), an established law professor at the University of Pennsylvania, and I have shared some emails on this matter. A weird or even bad decision is not the same as judicial activism.

Why do we care about this? If the Court takes the traditional understanding of the Constitution, it can easily strike down parts of the health care law that passed in 2010. It could, however, take the same reasoning that it did in Filburn.

The idea behind the Wickard v. Filburn case was that all farmers needed to follow the law in order for prices of wheat to go up. If only a few, who felt differently, went their own way and continued to produce wheat, the price would stay too low.

The health care law works in much the same way – it only works if everyone is in the same boat. This is the argument that I imagine the government is making on this issue, although it could still be struck down as many justices see the Filburn case as a bad decision. This case would be a way to address that after 70 years of debating that decision.

Whether requiring people to purchase health care is good policy or not is by no means the issue in front of the Court, which only answers constitutional questions, not political questions.

The Race in NY06

The upcoming race in the 6th Congressional District will definitely heat up in the coming months.

The top of the ballot will feature two well-financed candidates. The races that are going be close in the House and Senate are going to get some heavy financial attention.

The problem for a challenger like Republican Dan Halloran is that the national Democratic Party will do whatever they have to in order to hold the seat. Groups like SKD Knickerbocker, a D.C.-based PR firm, could get involved and run ads in the district like they have for other small races. The "D" in SKD Knickerbocker, incidentally, is Anita Dunn, former White House Communications Director.

Halloran has an uphill climb, but he might get some outside support from GOP interests. After seeing Anthony Weiner’s seat go Republican and the possibility of David Storobin winning the 27th Senate District seat, there may enough of an incentive for national donors to roll the dice on Halloran.

Whether Halloran or his eventual Democratic opponent is better for the district may take a back seat to the tide of the campaign. Voter turnout will most likely be very high. That might help Halloran if enough center-right voters come out in Queens. The top of the ticket could help the Democratic opponent, as the district may go to the president comfortably.

Also a factor in this race is what happened in Halloran’s last race for City Council: the Democrats were split. As small as the support is for the Republicans, it is a unified front.
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