Monday, January 31, 2011
by Erick Erickson
A Reagan appointed federal district judge in Florida has ruled key portions of Obamacare, namely the individual mandate, unconstitutional. Because Congress expressly did not put a severability clause in the legislation, the judge has ruled the whole law unconstitutional.
The left is, naturally, shocked and appalled that the judge did not let the rest of Obamacare stand as a judge in Virginia did. They are calling today’s judge “an extreme activist.”
Let’s clear this up: activism is when a judge changes a law in a way he wants, even if Congress did not intend it or when a judge imposes his own policy prescriptions into a law or the constitution.
What we are seeing here today is something extremely rare — a humble judge. Instead of trying to salvage a law with no severability clause, he followed long held precedent.
Congress typically puts severability clauses in legislation so that if one part of the law is unconstitutional the other parts stand. Congress chose not to in this case. Instead of the judge deciding whether or not Obamacare could or should stand on its own, the judge has decided he is not a legislature. Consequently, he’s thrown the whole thing out instead of letting his own policy prescriptions stand in the law to hold it up.
If that is activism, give me more of it.
Ultimately we should not get too excited. In reality, there is only one person’s opinion on this matter that counts — the opinion of Justice Anthony Kennedy.
But we’ve bought some time.