The Extreme Activism Of Judge Vinson

For most people, an “activist judge” is one whose opinions they don’t agree with. But Judge Vinson’s ruling today — that the entire health care law must be voided because he found one provision unconstitutional — really meets an indisputable definition of “activist.”

Vinson tossed the entire thing because it lacked a “severability clause,” which would have compartmentalized the legislation itself and forced judges to weigh individual sections on their own merits. But the standard is not that an unseverable law should be stricken in its entirety. Noted liberal activist judge John Roberts recently struck a sole provision of the Sarbanes-Oxley law, which likewise lacks a severability clause.

“We agree with the Government that the unconsti­tutional tenure provisions are severable from the remain­der of the statute,” he wrote.

Simply ruling against the mandate puts any judge on the opposite side of the vast majority of expert legal opinion. But given just such ruling, a less “activist” judge could have stricken just the mandate, along with directly relevant provisions — like guaranteed issue and the ban on discrimination against people with pre-existing conditions. Vinson decided instead to “legislate from the bench” and scrap the subsidies, regulations, marketplaces, and other goodies the law creates that really have nothing to do with the mandate as well.

It’s new frontiers in partisan judging.

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