Question

In 2010 Congress passed the “Patient Protection and Affordable Care Act,” also known as “Obamacare.” This act mandates that most individual Americans (there are exemptions) purchase health insurance or face certain penalties such as fines. In 2012, the Supreme Court reviewed this legislation and determine its legality. Explain the difference between judicial activism and strict constructionism, and then explain which philosophy you would use if you were deciding this case and why.

Answer 1

Judicial activism doesn't have a commonly accepted definition other than "judges doing what I don't like," which is essentially useless in any serious analysis.

Strict constructionism, on the other hand, does. It says that a judge must interpret the meaning of a piece of law (or any other written thing) according to the laws of English grammar and usage, and that once an acceptably clear meaning has been obtained, the decision is based upon that. There is no room for pondering what the legislature "meant" by the legislation, if it isn't plain in the text, nor for pondering what the law "should have" said, if it doesn't actually say it.

So, for example, to take the issue before the Supreme Court in NFIB v. Sebelius, the case challenging the constitutionality of the Obamacare law. Here the plaintiff alleged that the Constitution gives no right to the Federal government to regulate people when they are not doing anything at all. That is, the Federal government can require you to buy insurance on your trucks if you operate an interstate shipping business, or to serve in the military in times of crisis (because the Constitution specifically gives to Congress the power to regulate interstate commerce and raise an army for the defense of the United States). But the Constitution does NOT give Congress the power to reach into your private life, if you are doing nothing at all that affects the lives of others, interstate commerce, the national security of the US, et cetera, and force you to buy a product (in this case health insurance) just because they think it's a good idea. It's the same principle that says Congress can't force everyone to go to the gym because they think it's a good idea, or prohibit divorce because they think it's bad for children, or make everyone buy a 4G cell phone because it would stimulate the economy.

The government argued in response that it wasn't actually regulating the purchase of health insurance. You're not REQUIRED to buy health insurance -- there are no criminal penalties for failure to do so, you can't be arrested, et cetera -- you are merely taxed a little bit more if you don't. (Something like $500-600 a year, I think.) Since the Sixteenth Amendment gives Congress very broad taxing authority, and they routinely use it to encourage or discourage various activities (e.g. you get taxed less if you buy a house instead of rent, more if you don't have children than if you do, et cetera), then the law is constitutional.

Now here's where it gets interesting from the strict construction point of view. In fact, when the law was written, it SAID that it was regulating the purchase of health insurance, and in fact REQUIRING it, and that the money you were charged if you did not buy it was a PENALTY. (Albeit a penalty collected by the IRS with your taxes, and enforced by the IRS through audits and fines and so forth.) At the time, members of Congress who voted for the law, and the President himself, strenuously denied that it was AT ALL a tax -- nothing like that, nosiree bob, no taxes here! That, presumably, was for political purposes, because the whole law was sold as one that lowered the cost of healthcare, and putting new taxes in it sure sounds like it isn't lowering the cost of anything. Who knows? Anyway, that's what they said.

So now what is a judge to do? On the one hand, if he reads the law as it is actually written, and ignores what the government says during the trial, which is what strict constructionism says to do, then he is obliged to consider the Obamacare law as an attempt by the Federal government to regulate the nonactivity of individuals -- to force people to do what Congress thinks is a good idea, regardless of whether or not it affects anyone other than the individual.

It is, frankly, extremely unlikely that anyone other than a loon or zealot would find that constitutional. If Congress can force you to buy health insurance just because it seems to Congress it would do you good, then there are no practical limits to the power of Congress at all. They CAN prohibit divorce, force you to marry whom they choose, have the number of children they choose, go into the career they choose, and so forth -- so long as they can convince themselves, and a judge or two, that it is for the best, regardless of what you think.

But on the other hand, if you abandon strict constructionism, you can throw away the restriction that you consider the Obamacare "penalty" as a penalty, you can look at the real-world effects (as well as the arguments of the government at trial), and say, well, this is an odd "penalty" for a very peculiar "crime": it's not called a crime, you don't get a record, the justice system is never involved (only the IRS), and there is no possibility of prison or a fine. You just get your taxes cranked up a little. It sure walks and talks like a tax -- so why don't we call it a tax, instead of whatever the heck Congress called it for political purposes when they passed it?

And in THAT case, if you abandon strict constructionism, well, the Constitution cetainly does give Congress the power to tax people for not buying health insurance. (Although, probably, they'd have to rewrite it a bit, so as to tax everyone an extra $500 and give people who proved they bought health insurance a $500 tax credit.) So you can uphold the Obamacare law as constitutional. And that is exactly what the majority of the Supreme Court did.

There are strong arguments for and against strict constructionism. On the one hand, you don't necessarily want judges making law from the bench (because they aren't subject to elections -- a Federal judge is appointed for life) and there is no appeal. You can't overrule the Supreme Court except by amending the Constitution, which is really, really difficult. If judges routinely make law from the bench, then arguably we have given up on democracy, and we are allowing ourselves to be ruled by an unelected aristocracy.

But on the other hand, if judges just go 100% of the time by what Congress actually says, paying zero attention to the actual real-world practical effects of what Congress does, then Congress can slip outrageous things past them by simply claiming not to be doing it in the text. Oh, Obamacare is NO ATTEMPT AT ALL to regulate the purchase of health insurance. We just have a provision in there that says we re-instate the draft for military service, and -- ha ha, purely coincidentally! -- anyone who buys health insurance gets exempted from the new draft, and we've decided people drafted into the army should wear orange jumpsuits and do a lot of unpaid work picking up trash on the highways, breaking big rocks into small ones.... You wouldn't necessarily want a judge to just say, oh, well, if you SAY you're not putting any criminal penalties in here, then that's good enough for me.

Both are good arguments. You need a third argument, or principle, or some practical idea of how things generally actually work out, to decide between them.