Judicial Engagement Catching on in Courts Across the Nation

By Clark Neily

IJ’s Center for Judicial Engagement celebrated its six-month anniversary this summer with a bang. The decision striking down Louisiana’s economically protectionist casket sales law is a model of judicial engagement, featuring serious legal analysis, careful consideration of the evidence presented by both sides, and a categorical rejection of the rubber-stamp style of review so common in economic liberty cases today.

Just two weeks later, the 11th U.S. Circuit Court of Appeals displayed a similar level of engagement in holding that Congress has no authority to force people to purchase health insurance under the Affordable Care Act, also known as “Obamacare.” Weighing in at 207 pages, the 11th Circuit’s decision provides the most searching judicial analysis to date of the remarkable proposition that the federal government may compel individuals to enter into private contracts against their will. Rejecting the government’s invitation to simply rubber stamp this latest usurpation, the 11th Circuit explained that when Congress oversteps the outer limits of its power, “the Constitution requires judicial engagement, not judicial abdication.” (Emphasis added.) This marks the first time a federal court has ever used the term “judicial engagement” in that context. But it certainly won’t be the last.

The Institute for Justice will continue to advocate for judicial engagement, without which constitutional limits on government power are meaningless and our precious freedoms are left to the mercy of politicians.

To learn more, we encourage you to visit IJ’s Center for Judicial Engagement website at www.ij.org/CJE.

Clark Neily is an IJ senior attorney.