Last Friday, August 12, the Eleventh Circuit Court of Appeals struck down the provision of the new federal health-care reform that requires all individuals to purchase health insurance. We can expect many who favor the new law to therefore oppose the ruling, and to trot out the predictable (and meaningless) slur that the court has engaged in “judicial activism.”
But these responses miss the point. Friday’s decision isn’t ultimately about health-care reform. It’s about the role of the courts in our society and — really — whether we want to have three branches of government or only two. And that’s why everyone who cares about American government should be celebrating the Eleventh Circuit’s ruling.
Here’s the thing: Everyone agrees that the Constitution imposes some limits on what the federal government is allowed to do — it’s impossible to read Article One of the Constitution, which lists all of Congress’s powers, without realizing that there are some things that aren’t on that list. So the dispute isn’t about whether there are limits on Congress’s power, it’s about what those limits are. Or, more specifically, the question is what courts should do about the limits on Congress’s power.
The majority opinion from the Eleventh Circuit case has an answer for that question: “When Congress oversteps those outer limits,” the judges wrote, “the Constitution requires judicial engagement, not judicial abdication.” That is, courts should take the law seriously, they should take facts seriously, and they should try to determine as best they can what the right answer to a constitutional question is. (Disclosure: I have every reason to agree with the court here. The term “judicial engagement” was coined and popularized by my boss, Chip Mellor, and I work with the Institute for Justice’s Center for Judicial Engagement.)
But a dissenting judge has a different answer, which can be summarized in a single word: deference. The court should defer to Congress, to the government’s attorneys, to some vague notion of “the people” — it should look everywhere but itself for answers to difficult questions.
This is the real debate: Should courts exercise independent judgment about the facts and assert an independent role for themselves in constitutional questions? Or should they defer to whatever the legislature happens to want on a given day? Focusing on the result — on whether or not you like health-care reform — is a distraction from this core question. And make no mistake about the question’s importance: The answer will have sweeping consequences for everyone from monks who want to support themselves by selling handmade wooden caskets to ordinary Americans who want to put political signs in their yards.
The courts are meant to be a bulwark of liberty in American government. But that’s a responsibility they can only fulfill if they engage, if they assert the authority to independently evaluate the facts and the law — if they, in a word, judge.
And that is what the Eleventh Circuit did on Friday. Whatever you think of the court’s interpretation of the facts and the law, you have to admit that it did not simply hide behind the cloak of “deference” to someone else’s authority. And whatever you think about health-care reform itself, you should applaud the court’s refusal to abdicate the responsibilities entrusted to it by the Constitution.
The existence of a robust judicial system is far more important for our freedom and our prosperity than the outcome of any particular case. It’s no exaggeration to say that system is exactly what’s at stake here. The Eleventh Circuit’s opinion is an important blow in a long-running battle between advocates of judicial engagement and advocates of what the court rightly condemned as judicial abdication. That is the real story of Friday’s decision. And everyone with a stake in our having a judicial system that will assert its authority against the other branches of government — which is to say, everyone — should see that story as a cause for celebration.
— Robert McNamara is an attorney with the Institute for Justice’s Center for Judicial Engagement.