Hmmm, I thought conservatives didn't like activist judges who legislate from the bench.
The only thing about this that is activist is the portion of the ruling that says if one part of the law is unconstitutional, the whole thing is. The health care overhaul pushed the boundaries of legislation, and it deserves to be put in front of the USSC ASAP as what it id raises pertinent constitutional questions. I'm not saying anyone will like the answers, but it should make the run up to the highest court sooner rather than later.
Much like folks on the right, you misuse the phrase activist judge when it suits you.
It is a real problem, and we have it bad here in NJ ( I wouldn't call it activism, more like criminal misuse of authority).
A judge's job boils down to two things. 1) to take a law, and decide if it is permissible within the framework of the existing law of the land. (i.e. federal constitution, state constitution, case law of rulings form higher courts, constitutionally ratified binding treaties, etc.) 2) To take a given situation and interpret it within existing law.
So some cases we have. The state constitution says that within X days of the election, you cannot introduce new candidates or change a ticket. The NJSC allowed the democrats to replace Torricelli within the proscribed period as he was being investigated for corruption and that investigation made Torricelli unelectable. The reasoning was that Since he was unelectable, the replacement was in the interests of the electorate to preserve choice on the ballot. There was more than one candidate left once you left out Torricelli BTW.
The next election, a republican candidate for the state senate (might have been assembly), died shortly before the election for his office. The exact same judges then decided that the constitution forbade replacing a candidate that close to the election. When the precedent of "preserving choice" arose, the EXACT SAME judges who were quoted said it had no bearing on the constitutions rules. To make it more absurd, after the death, there was only one candidate left on the ballot.
Then there was the whole abbot school district fiasco. The basis of the argument, that constitutionally, income tax in the state exists solely to offset local property taxes. That a number of poor (and a few not poor at all, but home to well entrenched democrat office holders) districts given the low income level and high population were bearing a disproportionate burden in local taxes to support education. It's a stretch, but you could make the argument. So not only does the court say it has to be rectified, but essentially their judgment is a fully formed bill with how exactly it was going to be reformed. They also argued that what was due was relief sufficient to bring those district up to the median funding of districts in the state excluding program schools. Instead, they are funded at a 1.8x-4x rate of the BEST funded district in the state excluding abbot district. (some info. A year of full time enrollment at Rutgers, WITH residence and meal plan at the time I measured was well under $20k. In the same town you pay for a college education, the cost per pupil being paid by taxpayers in that district was $32k. Rutgers received about 7% state subsidy at that time. So figure $22k cost at RU to be generous vs $32k in New Brunswick.
Then of course there is the matter of borrowing money. The state constitution says if you want to do it, you have to put it on the ballot and get a yes vote from the electorate. So far the NJSC with the SAME gang of duchenozzles on it has said that is true, unless the electorate says no, but the legislature really wants to borrow money anyway. BTW, once again the exact same seated judges have ruled at other times that it was unconstitutional, but the punishment would be nothing.
So what you have are a panel of unelected officials that can be appointed for life (theres some odd rules, but after being reappointed a number of times, getting rid of them is next to impossible), and they rewrite the constitution at will and enact the letter of the law without any sort of recourse.
The judicial branch exists to say no to the legislative and executive. Not to pass legislation. I don't care what end of the spectrum your issue comes form.
Your premise is not correct. Since our law is based on common law the judicial branch has the power to legislate (and in fact, so does the jury in cases with a jury). A judge just needs good reason for his activism. It shouldn't be used in a derogatory way from either side since it's traditionally held as their jobs.
I just wish the interstate commerce clause weren't so broad because it allows anything. Personally I believe the health care bill is completely constitutional based on how all people currently interpret that clause.
I also believe it's a terribly written piece of legislation too and should never have been passed when about half of the country doesn't want it. It really should have been offered as an amendment to the constitution, but thanks to the interstate commerce clause the amendment process was bypassed like usual.
that horrible law as a amendment? that would be horrible and I think pitchforks and torches would be the right response to that.
baron, i think you might be able to catch a Jared Laughner seminar if you hurry up and get arrested now!
Well, if it is voted down it is and so be it.. I wont sit around throwing a 4 year fit over it. I also wont sit around getting nothing done because i didnt get my way.. Like we have seen over from some since healthcare passed.
Well shit, a 4 year fit is only half as long as the one you threw over bush, so....
A lot of us threw an 8 year fit over Bush, and for good reason.
That guy left our country nearly in ruins.
You guys are crying about the cost of the cleanup of his mess, but you aren't taking it up with the guy who made it, you are taking it up with the guy trying to clean it up.
Bush's budget looked a lot better on paper than in reality because the war and other big money projects were off budget. Now that we have everything all back on one budget, without the trickery, it looks like we have increased spending a lot more than we have.
Now we are just more honest about the spending. So now in addition to the hard news about how much the Bush bender is going to cost, we have to hear all the crying about how much we are spending compared to the good ole Bush days.
See, that's where I see a lot of partisan blindness coming in. Bush started out trying to reign in some of the insane crap that lead to our current economic situation. Then he started towing the line. Obama started out making even more noise, and is towing the line now too.
Congress, regardless of who was in control hasn't even pretended to give a shit about reality.
There is no partisanship in noticing that the worst Recession in two generations occurred in year 8 of Bush's time in office. The Recession numbers are staggering.
And yes, Clinton signed off on some of the worst legislation, and yes Congress was out to lunch, and yes, it was brewing for a long time, and yes, irresponsible people in many sectors of the economy contributed to the disaster, but the buck still stops at the White House, at least unless you can spin your way out of it.
Gramps
Hmmm, I thought conservatives didn't like activist judges who legislate from the bench.