The piece is long, but its essence is that it would be judicial activism for the Supreme Court to overturn Obamacare because it overrides Congress’ vote. The true conservative vote, according to Tomasky, is to uphold Obamacare and let Congress change it, if it wants.
Tomasky makes a mistake I see all to often from people who don’t like the thought of legislation being voted down because it supersedes Congressional authority: equating a ruling against a law’s constitutionality with activism. It is a mistake in logic.
The conservative position , which is entirely logically consistent, is not that overruling Congress should be avoided, but that in the absence of a constitutional principle, one should defer to the legislature. That is, judges should not interject personal beliefs about how the law should be; they should only rule on what the law says and (in the case or originalism) what the law’s intent is. Thus, if Congress were, for instance, to pass a tax of 80% on the first $20,000 of a person’s income, no matter how stupid, destructive and unfair it would be, the courts should not look for, or concoct, some excuse to to override the law because the Sixteenth Amendment clearly gives Congress the authority to implement income taxes. However, if a city, suffering from crime, adopts a law that says anyone on the streets after midnight may be stopped and searched by the police at will, without any reason, that law must be struck town because the wording and the intent of the Fourth Amendment are designed to protect against unwarranted government intrusions.
In the case of Obamacare, the question is what is the limit of the commerce clause’s power? Even if one does not believe, as I do, that Wickard v. Filburn is the most political and wrongly-decided case of the last 100 years, there is still a very strong case to be made that Obamacare exceeds Congress’ authority. At the heart of the issue is what are the limitations of the federal government in a federal republic designed with the intent of limiting government powers? A finding in favor of Obamacare would seem to indicate that there are no limitations, whatsoever, on the federal government’s power in economic life. That would be an absurd understanding of the Constitution, in my opinion, though clearly people such as Tomasky have no problem with it. However, regardless of where one falls on the issue, the charge that it is activism to strike down a law that conflicts with the wording and intent of the Constitution is absurd on its face.