Much has been made of the coalition of state attorneys-general suing the federal government over the constitutionality of the recently enacted health care bill. But while many of us are happy to see the state governments taking some form of action to preserve their powers and to protect the liberties of their citizens from federal over-reaching, the strategy of seeking a solution in the courts comes with substantial risk.

Robert F. Nagle explains why this is so in his column posted at National
Review Online, “Against Judicial Supremacy.”

Here is an excerpt from Mr. Nagel’s column to whet your appetite:

The chances that the new health-care law will be found to be beyond Congress’s power to regulate commerce are in fact slight. The Court’s general standard demands merely that the affected activity must, in the aggregate, have a substantial impact on interstate commerce. It is difficult to see how anyone could conclude that requiring millions of people to purchase medical insurance would not have such an impact.

There are larger reasons to think it strange to turn to the Court to protect us from Obamacare. The reason Congress is granted only limited powers by the Constitution – and why states retain those powers not enumerated – is to promote separation and competition between the two levels of government. It seems improbable in the extreme that the justices, who are (after all) important and proud components of the national government, would view with sympathy those presumptuous states’ claims to power.

When states do challenge national authority, as some did by attempting to roll back or even reverse the Court’s decisions on the right to abortion, the Court depicted their actions as anarchic threats to our constitutional system…. Perhaps the Court should perceive the proposed state statutes that seek to exempt citizens from Obama’s medical mandates as healthy resistance to federal overreaching. But the chances of this are zero.

Moreover, the constitutional principle at stake, federalism, is in many ways an affront to the judicial mindset. Judges are attracted to clear legal standards; federalism is a profoundly undefined concept.

More is waiting for you at the link above.

Walt Garlington
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