Overturning ObamaCare isn’t ‘Judicial Activism’

If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.

By DAVID B. RIVKIN JR. And LEE A. CASEY

Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.

“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.

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Liberty and ObamaCare

The Affordable Care Act claims federal power is unlimited. Now the High Court must decide.

(Published in The Wall Street Journal, March 22, 2012)

Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

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The Supreme Court weighs ObamaCare

Congress’s power to regulate interstate commerce is broad but not limitless.

(published in The Wall Street Journal, March 21, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.

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Truth to tell, the Stolen Valor Act is unconstitutional

(Published in The Washington Post, March 12, 2012)

While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor.

Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only individual officials. And even if the government could be libeled, the First Amendment forbids laws banning speech that challenges or impugns the government’s reputation.

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The Supreme Court must protect the First Amendment from Unions

(Published in The National Review Online, February 29, 2012)

By David B. Rivkin, Jr. and Andrew Grossman

Theresa Riffey provides help around the home for her brother, a quadriplegic, and receives a small stipend from Illinois’s Medicaid program for her efforts, saving the state the cost of providing full-time care. Illinois law requires her to pay a portion of her check every month to an affiliate of the Service Employees International Union (SEIU). The Supreme Court will soon decide whether to hear her case that asks on what basis, besides raw political power, a state may compel independent home-care workers and other similarly situated self-employed persons to support and associate with a labor union against their will. For the sake of workers’ First Amendment rights, it should take the case.

“Organized labor” brings to mind railroads, factories, and government offices, but the labor movement’s biggest recent gains have been in the home. Led by SEIU, unions and their political allies have pushed through executive orders and legislation in a dozen states to “organize” home-care workers, such as personal assistants and sitters, by deeming them state employees for collective-bargaining purposes alone.

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Bringing ‘Alien Torts’ to America

A court case that could invite specious international damage claims to the U.S.

(published in The Wall Street Journal, Feburary 28, 2012)

By DAVID B. RIVKIN JR. And LEE A. CASEY

This Tuesday the Supreme Court will hear arguments in two cases that should interest every U.S. company doing business overseas, and especially those operating in the developing world. Kiobel v. Royal Dutch Petroleum Co. and Mohamed v. Palestinian Authority raise the issue of whether corporations can be sued for violations of international law under U.S. statutes, including the Alien Tort Statute.

The ATS was adopted in 1789 by the first U.S. Congress. The statute permits suits by aliens in federal courts for certain alleged international-law violations, but it was moribund for nearly 200 years and its purpose remains opaque. The best guess is that Congress wanted to provide a means by which the U.S. could fulfill its international obligations to vindicate a very discrete set of damage claims by diplomats and other foreign nationals injured or abused by Americans.

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