Turley to White House: Quit whining

Two days ago, MSNBC legal analyst Jonathan Turley told Lawrence O’Donnell that the Democrats and the White House played “a game of chicken” with ObamaCare by leaving out a severability clause routinely included with most legislation.  Indeed, earlier versions of ObamaCare had included the severability clause in the bill, but was removed at some point in its final pass through Congress.  Now the White House is screaming “judicial activism!” at the top of its lungs, but Turley tells the White House to quit whining and recognize that their “Ford Pinto law” blew up in their faces:

Many — including yours truly — had raised concerns over the constitutionality of the individual mandate. Even the respected Congressional Research Service noted that such objections might have merit. Ultimately, public officials in 26 states have challenged the law.

Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress — not the courts. The result was a Ford Pinto law — a fast and cheap vehicle that would explode with even low-speed collisions.

The Justice Department undermined its own case by repeatedly warning Vinson in court that if he struck down the individual mandate, the law would be fundamentally crippled. Without the mandate (and young healthy people forced to buy insurance), the plan isfatally underfunded. It appeared to the court that the administration was arguing that it was an “all-or-nothing” proposition. Vinson’s ruling: Nothing it is.

Crying “judicial activism” is just an excuse for betting badly:

The charge of activism sounds like the lament of every bad gambler after being discouraged from playing a high-risk hand.

Besides, as David Harsanyi pointed out in his column yesterday, the activism came from the White House and Democrats.  Judge Vinson followed the law and the Constitution:

The decision, you may not be surprised to hear, is also a case of “judicial activism” and an “overreach.”

Co-opting conservative terms like “judicial activism” is a cute way of trying to turn the tables on those who have some reverence for the original intent of the Founders.

The true activist invents new ways to expand power and set precedents allowing his or her ideological views to be embedded in the “Constitution” forever. An activist searches for ways to rationalize intrusions, not to limit them — unless the breach involves terrorism suspects and the guy holed up in the White House is a Bush.

As Turley remarks at the end, the problem with playing chicken is that your opponent might not be one.  Such was the case with Judge Vinson, who acted to preserve the limits of power of the federal government, which is one of the main roles of the federal judiciary.  The severability stunt backfired, and now the White House looks both foolish and extreme, not just for the law but also for their response to the ruling.