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Argumentum ad ignorantiam

By ThosPayne
2/3/11 01:10 AM

"Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. Judicial activism is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress rather than limiting itself to the powers traditionally given to the judiciary."
( http://www.conservapedia.com/Judicial_activism )

Classic examples of judicial activism are exemplified in the Citizens United v Federal Election Commission (130 S.Ct. 876 (2010)) decision, and now in the State of Florida v. Dept. of Health & Human Services decision.

For most people, an activist judge is one whose opinions they disagree with. But Florida's Federal Judge Roger Vinson's ruling that the entire Affordable Care Act must be scrapped just because he found one provision in it he deems unconstitutional is a classic exemplar of partisan jurisprudence.

The strangest part of Judge Vinson’s ruling was his argument that the individual mandate to purchase private health insurance was not severable from the whole Affordable Care Act. His conclusion is peculiar because the courts almost always defer to Congress on questions of severability. In fact, even Judge Henry Hudson, the Virginia Judge who also found the individual mandate unconstitutional, left the rest of the Affordable Health Care law intact.

Judge Hudson concluded “It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501... Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any ‘problematic portions while leaving the remainder intact.’”

Chief Justice John Roberts also noted that, “Because the unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions... the ‘normal rule is that partial, rather than facial, invalidation is the required course.”

In other words, just because the requirement to buy insurance is in question, it does not invalidate the entire Act. The SCOTUS has previously ruled the exact opposite of Judge Vinson.

Maybe you'll understand when you discover that Judge Vinson lifted his opinion verbatim from an opinion in a brief filed against the Act by a hate group!

Vinson himself admits he arrived at his conclusion by “borrow[ing] heavily from one of the amicus briefs filed in the case, for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability.” The brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC).

Reading the full ruling, you get a creepy 'Bush v. Gore' feeling - particularly when Judge Vinson concedes that his position is blatantly activist and constitutes a radical break from the court's preference for conservative rulings.

The reason why the Act requires people to carry insurance is because the Act also prevents insurance companies from denying coverage to people just because they are already sick. Seven states tried to ban preexisting conditions discrimination without also requiring everyone to carry a minimum level of coverage, and all seven of them saw their premiums skyrocket. Several states that tried doing one without the other also saw their entire individual insurance market collapse. (Massachusetts, by contrast, enacted a law that was very similar to the Affordable Care Act and its premiums declined by 40 percent in the individual insurance market.)

Vinson's ruling is, in every sense possible, the very definition of judicial activism, partisan jurisprudence, over-reaching and legislating from the bench.

Copyright © 2011, Gold Country Media

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