Judicial Activism Run Amuck

Apparently, an activist George W. Bush- appointed judge has ruled the individual mandate unconstitutional. This comes after two Clinton appointees have reached the opposite conclusion. The right truly loves the term “judicial activism”, but what they actually mean is “judicial activism in areas I disagree with”. There can be no doubt that the most activist and imprudent rulings over the past decade or so stem from the right flank of an increasing partisan judiciary – Bush v. Gore, Heller and the associated gun control rulings, and now this assault on the individual mandate. Remember, the individual mandate used to be a Republican idea, in the days before the inmates took over the asylum.

At its core, the Affordable Care Act needs the individual mandate to work. Polls show that people favor most of the provisions of the Act, but dislike the individual mandate. This displays a keen lack of understanding on how the individual mandate ties everything together. You cannot force insurance companies to cover everybody and not discriminate based on pre-existing conditions while healthy people can simply opt out. This cannot work. Thankfully, Ezra Klein thinks that even if the partisan Supreme Court sides with this Virginia activist judge, there are ways to work around it.

But there is a broader point to me made. We will undoubtedly hear some justifications based on federalism, and some on the Catholic right might even mis-invoke and mis-apply the principle of subsidiarity. But we all know what this is really about. Yet again, the assault on the individual mandate comes from the American “don’t tread on me” individualist tradition. It is the essence of liberalism and is based on a false notion of human freedom. We live in society. What must matter is the common good, not the mere inconvenience of an individual. It’s bad enough sitting through interminable lines at tolling booths, as the inability of the United States to compel drivers to embed an electronic device in their vehicles hurts everybody. It’s far far worse when people are denied the human right to health care because of some liberal philosophical objection to a requirement to purchase health insurance. We are a society. We are supposed to be a cohesive social order, not a mere collection of individuals who happen to live in close proximity.