The Heritage Foundation Makes the Case for Judicial Activism…

…while purporting to invoke “judicial restraint.” In a summary of how, exactly, the Sixth Circuit apparently erred in sustaining the Affordable Care Act against slipshod “tenther” litigation, Edwin Meese explains,

Whatever the merits of that judge’s analysis, it was not an example of judicial restraint properly understood. While restraint counsels against judges shaping the law to suit their own policy preferences, it must not supplant meaningful judicial review.

You see, when he says “judicial restraint,” he means,  “except when the law at issue is subjectively bad by conservative standards.” This comes as close to blurring the line between a procedural critique of “activist judges,” and a substantive critique of a decision one happens to disagree with, as I’ve ever seen. Until later in the same post.

First, the term “rational basis” … is judge-made code for “blank check,” as the majority’s analysis makes abundantly clear. The Supreme Court has held that the government need not present any evidence in rational basis cases, and it is irrelevant why the law was actually passed or whether it was enacted for a truly public purpose. But that is very the antithesis of judging, which, unlike the rational-basis test, is deeply concerned with facts, evidence, and truth.

Second, it’s the wrong question to begin with. The proper question in this case is not whether a given law bears some “rational” connection to a power enumerated in the Constitution, but whether the law is consistent with a system of government in which the powers withheld from Congress were meant to be far more numerous than the powers conferred. And that is the glaring flaw at the heart of the Sixth Circuit’s decision upholding the Affordable Care Act: It reflects no appreciation for the bedrock principle that Congress’s powers are “few and defined” as compared with those reserved to the states and the people.

Finally, the health-care challenge presents courts with the opportunity to reconsider their misguided policy of reflexively deferring to Congress.

Emphasis, naturally, mine. It’s hard to square any concept of “judicial restraint,” as we’ve heard the term bandied about, with an argument against the ancient, core doctrinal rule requiring that judges “reflexively defer[] to Congress” except when a fundamental right, or suspect classification is at stake. Apparently Meese hopes to convince the reader that “rational basis” is some shocking departure from traditional notions of judicial scrutiny. It is, instead, the core rule of how the Court handles regulations impacting economic rather than substantive liberties.

Since Meese is a former Attorney General, and a graduate of Yale Law School, we can presume he knows better. Which means he also knows what he’s doing, in purposefully miseducating his readers on the state of the law.

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