It is as if Dredd Blog saw it coming, conservative activist judges, as did many other folks.
Moderate democrats, asleep at the wheel, along with right wing republicans who think every thing goes better with a right wing ideology controlling things, generally scorned the Dredd Blog alarm bells.
But the ears of the democrats perked right up when the Supreme Court case Citizens United v FEC came down.
Now, activist conservative judges in the federal system are going to have to decide what to do with the Health Care Reform (HCR) legislation.
That is unavoidable because mostly conservative, or even neoCon, lawyers who hold positions as Attorney General in their respective states, have filed a lawsuit in Florida claiming that HCR is unconstitutional or otherwise illegal.
After reading the complaint, and the comments of legal scholars on both sides, I am of the opinion that the legal challenge is certainly neoCon in origin.
The ideology in the complaint does not simply arise from traditional conservative thinking, no, it is more neoCon in origin than conservative.
There are three activist neoCons on the Supreme Court, Roberts, Alito, and Thomas, with Scalia on the border line, crossing back and forth at times.
Kennedy is more of an "old fashioned" conservative who is now often the "swing vote" after Sandra Day O'Connor left the bench.
There are four Justices, who are called liberal, but who are not activist anywhere near the degree Roberts, Alito, and Thomas are.
Even with that backdrop, the complaint has no chance in its Tenth Amendment constitutional challenges, or in its states rights challenges.
The only area for a "valid challenge" is where the complaint sets forth a debate on the commerce clause, in the context of requiring people to purchase insurance or receive some sort of tax assessment as a consequence.
The weakness in the neoCon case lies in a well worn path, already travelled by the states, that is in contrast, in basic principles, to their "you can't make me do it" argument.
Clearly states mandate auto insurance, which has been held constitutional, and not only that, it is actually universally mandated insurance coverage ("socialists did it!").
Those who advocated not having auto insurance raised the same "you can't make me do it" arguments, but lost because it is obvious that a requirement on everyone is not biased against anyone, and it benefits all of us.
Texas has proven, since it has the highest number of people who refuse to purchase auto insurance, that not having it increases the number of trailer parks in those neoCon states.
When the financial security of the nation is threatened by rising health care costs, why can't the federal government mandate insurance coverage like the states do with automobile insurance?
Everyone benefits if everyone has automobile insurance, so it would seem bizarre indeed if states did not mandate automobile insurance coverage would it not?
The only hope these politically motivated lawyers have in the lawsuit against HCR, is the hope that the rogue and mavericky fellas on the Supreme Court get all "jiggy wid it", to radicalize the Supreme Court with judicial activism.
Like Citizens United v FEC, it will show supreme hypocrisy for those in the republican political machine, who have constantly and loudly voiced opposition to judicial activism, to become the most activist judges in many generations by outlawing HCR.