Re: Central Provision of Health Care Law Is Ruled Unconstitutional

>The way I've understood it, an "activist judge" is one who imposes new
legal requirements and standards that do not exist within the law itself.
And by "the law", I mean everything up to and including the Constitution,
or whatever the highest legal authority in your country happens to be.<

Yes, an activist judge goes beyond interpreting a law and reads things into 
the law/constitution that go beyond the text and readily discernable intent 
of the legislature/drafters.  Obviously the readily discernable intent is 
where the wiggle room is but looking at the legislative history of a bill 
and/or other documents, (Federalist papers, Articles of Confederation, even 
letters of those included in the drafting process are examples), is 
considered to be legitimate interpretation of a law/constitution.

And this judge only struck the mandate/mandate dependent aspects of the law. 
Opponents of Obamacare suggest that the law was not severable in this way, 
(a well written law should include a provision that says something to the 
effect that just because one part of the law is found invalid doesn't mean 
the rest of the law is invalid - arguably without such a provision a judge 
isn't supposed to read such a provision into the law - the theory being that 
if the legislature didn't include it the legislature didn't want it in 
there). and that it should be either all or nothing.  In short judges should 
assume and presume that the legislature means what it says and says what it 
means.

Ruling that the law is unconstitutional and/or that it goes beyond the 
reasonable scope of the interstate commerce clause is NOT an activist 
ruling, even if one disagrees with it.

Ironically, the ruling that saves the rest of the bill, (IOW not striking 
the whole thing down), is more "activist" than finding the mandate 
unconstitutional.

Mike F. 


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