On Sunday, Gingrich was asked on "Face the Nation" if under his proposal Obama could hypothetically overturn any ruling that rendered the ACA unconstitutional. Paul Waldman translates:
"Gingrich said the standard should be the 'rule of two of three,' in which the outcome would be determined by whichever side two of the three branches government were on." He did allow, though, that most of the time "you want the judiciary to be independent," but it's necessary to step in and overrule them when they make decisions that are "strikingly at variance with America." Well that makes sense: the judiciary will be independent, so long as they don't render decisions deemed wrong by…well, by Newt, I guess. To their credit, even many conservatives believe that on this issue, Newt is completely insane. But that just shows that even his own party can't fully appreciate his bold, innovating thinking.
Jacob Sullum thinks through Gingrich's proposal:
Congress and the president, of course, enacted the Patient Protection and Affordable Care Act together. Since that is always true for acts of Congress, Gingrich is essentially saying there is no judicial solution to unconstitutional laws. The only hope is that elections will either put someone new in the White House or (as in this case) change the makeup of Congress so that it might stop the president from implementing a law approved by an earlier Congress. In effect, the Constitution prevails only when an electoral majority allows it to prevail, which radically undermines its strength as a check on the popular will.
Doug Mataconis is taken aback:
[T]here is nothing conservative about what Gingrich proposes on this issue. His proposals are, as are many of his ideas, wildly and inappropriately radical. In his position paper, Gingrich engages in a wholesale attack on the structure of American government as established in the Constitution, and as it has existed for the past two centuries, proposing to replace it with a system where majorities are given even more control over the levers of state while minorities are increasingly denied access to the one branch of government most likely to protect them from a rapacious and oppressive majority. It is an attack on the Constitution, on the Rule Of Law, and on individual liberty.
Jim Geraghty is slightly more composed:
What is popular and what is constitutional are not always the same, and the role of the court today, for all of its flaws, includes separating the two. Gingrich’s approach may seem appealing when we witness egregious examples of judicial activism – but if conservatives as a whole endorsed it, the approach would represent a major gamble that liberal Democrats would never again get complete control of the legislature and executive.
Along the same lines, Stephen Budiansky comprehensively debunks Gingrich's history of the judiciary.
The Dish 