Conservative politicians and commentators are celebrating the decision by a federal judge in Virginia striking down the recently enacted health insurance legislation. This means that in the next few days we will hear repeatedly from conservatives how a federal court has agreed with the law's critics that it constitutes an unwarranted federal takeover of health care in this country. The one thing we will not hear from the ruling's supporters is the charge of "judicial activism." This is because conservatives only complain about judges striking down laws enacted by democratically elected representatives when those rulings are inconsistent with right-wing ideology.
It is possible to take issue with a judicial opinion interpreting the Constitution in two different ways. The first is to disagree with the legal reasoning adopted by the court. The main question in the cases challenging the health legislation is whether the Constitution authorizes congressional regulation of individuals who choose not to purchase health insurance. Although I believe that the Constitution does grant Congress the power to do so, I recognize that reasonable people disagree on the correct answer to that legal question.
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