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The White House’s (Counterproductive) Critique of Judge Vinson's Ruling

8:19 AM, Feb 2, 2011 • By JEFFREY H. ANDERSON
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President Obama’s progressive allies share his skepticism about — or indifference toward — a fixed, knowable Constitution. The New Republic’s Jonathan Cohn writes, “I don’t think the constitution [small “c”] has some unambiguous, values-free meaning.” Cohn continues, “It’s up to the judges to decide which precedents matter more. And that’s a decision bound to reflect their values. All of which is a long way of saying that judges can do whatever the heck they want.” The Washington Post’s Ezra Klein adds, “The issue with the Constitution is that the text is confusing because it was written more than 100 years ago.” (One might say that it was written even before then.) In response to Judge Vinson’s ruling, Klein resorts to simply making things up, writing (without basis), “Vinson concedes his position is activist in the extreme.”

In light of all this, it’s tempting to say that if the Obama administration’s hand, accustomed to feeding judicial activism, has now been bitten by it, this is cosmic justice. But that’s not actually what has happened here. Rather, Judge Vinson’s ruling represents the triumph of judicial deference to the Constitution as written, a philosophy that the Obama administration rejects.

What’s really happening here is this: The administration wants the courts to issue activist rulings on ObamaCare. Not all activist rulings usurp legislative power, in the spirit of Roe v. Wade. Some extend legislative power, and the administration wants the courts that rule on ObamaCare to apply that sort of activism — defying the plain, commonsense, historically understood meaning of the Constitution in the process.

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