Right after President Obama signed the health care bill into law yesterday (using $2,970 worth of pens, as Americans for Tax Reform pointed out), thirteen state attorney generals filed lawsuits against the federal government, alleging that the individual mandate and the unfunded mandate provisions are unconstitutional. Although most pundits have speculated that these lawsuits will fail, the Independence Institute’s Dave Kopel writes in today’s Wall Street Journal that all might not be lost.

One source of the impending constitutional challenge to the Obamacare mandate is that [it] exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. [Yale Prof.] Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of [the precedents in] Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax. 

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power? I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” . . . Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress. . . .

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history.

Although the mere mention of “activist judges” tends to send conservatives into apoplectic fits, it might be time to reevaluate that disdain – because activism isn’t bad when it’s used at the right time. The 2007 book David’s Hammer, published by the Cato Institute, asserts that the Founding Fathers intended the judiciary’s role to be the ultimate safeguard of a free society, because “For better or for worse, only a vigorous judiciary can enforce the limits on executive and legislative action, protect constitutional rights, and tame unelected bureaucrats.”

Without a doubt, the health care bill poses a threat to the nation’s financial well-being, and fundamentally redefines the relationship between Americans and their government. For far too long, the courts have given the executive and legislative branches a pass on their bad behavior. It’s time to push back.