Judicial activism can be a right-wing problem, too


December 20, 2018 - 9:50 AM

When conservatives decry judicial activism, the target is inevitably a liberal judge whose rulings reach beyond interpreting law to making law. But misguided activist judges aren’t limited to the political left as last week’s federal court ruling against the Affordable Care Act shows.

Ruling on a lawsuit brought by Texas Attorney General Ken Paxton and his counterparts in 19 other states, U.S. District Judge Reed O’Connor in Fort Worth concluded that the entire Affordable Care Act is unconstitutional because Congress removed a key provision in the health care law.

This editorial board has had serious problems with the Affordable Care Act from its inception. We’ve worried that while well-intentioned, it would be unaffordable. And we worried about its constitutionality before Supreme Court Chief Justice John Roberts bailed out the law in 2012, defining a key provision in the individual mandate as a tax. The “tax” — really an unconstitutional penalty — disappeared when Congress passed the 2017 tax cut bill, opening the door for O’Connor’s ruling.

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