Is The Judiciary Finding Its Voice?

In several recents decisions, and active cases, the Judicial Branch appears to be coming to its collective senses and restraining the unconstitutional expansion of government’s already unsustainable power. Whether it’s the NSA’s invasion of our privacy, the disregard for religious liberty under Obamacare, or the $800 billion tax increase levied by the IRS, judges seem to be saying enough is enough.

The NSA Can’t Hit The Ocean With a Net

Our government exists to defend our liberty, including defending our civil liberties and defending us from attack. As Senator Ted Cruz (R-TX) put it in a release, the NSA phone data roundup does neither:

Unfortunately, the Obama Administration has failed in both regards. It has repeatedly been unable to connect the dots when there’s credible evidence of threats in preventable terrorism cases, as with Major Hasan at Fort Hood or with the Boston bombers. And, at the same time, the Administration seems to consistently favor undermining the rights of law-abiding Americans, such as by targeting citizens with the IRS. 

Whether from political correctness or bureaucratic bungling, the government frequently tries to sweep away more of our rights while failing in its basic mission.

The NSA sweeping up a record of every phone call and Internet transaction it can find so that it has them when it needs them is a lot like — and often is exactly like — keeping track of your whereabouts in case they want to make you prove your innocence.

Religious Intolerance

Judges have taken notice in several cases that the Obama Administration takes neither the Religious Freedom Restoration Act nor the First Amendment all that seriously, or perhaps merely believes that people give up their basic rights when they engage in commerce.

Leftists often argue that allowing companies and employees out of the mandates is allowing the individuals to force their religious views on everyone else. In fact, it is the administration seeking to define religious liberty down to a space between church pews on Sunday. 

Conn Carroll noticed the broad impact of the rebuttal of the Administration’s reasoning (emphasis Carroll’s):

The Government first argues that the alternatives above are infeasible because the defendants lack statutory authority to enact some of them. This argument makes no sense; in any challenge to the constitutionality of a federal law, the question is whether the federal government could adopt a less restrictive means, not any particular branch within it. It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution. If defendants lack the required statutory authority, Congress may pass appropriate legislation.

Expect the government to have to reformulate its definition of “preventive care.”

If Congress Won’t Act, The IRS Will

In the Halbig v Sebelius case, several businesses and individuals are suing the IRS for illegally allowing subsidies for companies selling insurance on the federal exchange, contrary to the text of the law. The employer mandate, illegally delayed by the Obama Administration for a year, only applies when insurers get those subsidies for at least one of a company’s employees. No subsidy, no mandate.

The left clings to the hope their friends on the bench will rewrite the law to make it say what they now wish it said, rather than what it actually says. And the legislative history is clear: Congress had to give the states incentives to implement their own exchanges, choosing the insurance subsidies as the means to that end. 

A typical argument can be summarized as “Shut up, that’s ridiculous.”:

“To believe their argument, you have to believe that [top Democratic Senators] Harry Reid and Chuck Schumer and Patty Murray and Max Baucus got together off the Senate floor one day and said, ‘I know what we’ll do to convince these states that they should set up exchanges: We’ll give them the power to completely destroy at least the exchange portion of Obamacare in their states,’” said Simon Lazarus, senior counsel at the left-leaning Constitutional Accountability Center who has taken a leading role in repudiating Cannon’s work. “People think a lot of things of those individuals, but dumb is not one of them.”

But that reasoning relies on viewing the past with knowledge of the present. No one knew that Tea Party and Republican opposition to Obamacare would be so strong. 

No Certainty

While none of these cases are sure things, the arguments have been framed well and the legal t’s crossed and i’s dotted. Their march through the court system appears to show judicial integrity holding firm, fulfilling the role of the courts in standing up when the political branches stray too far from America’s design.