The Supreme Court at least in its present composition has an extremely mixed track record in upholding the basic building-block notions of the U.S. Constitution. Its two most egregious, and potentially most damaging, cases thus far have both concerned the “Affordable” Care Act.
Gentle Reader will recall those two cases: This first decision ruled that Congress can in fact exercise powers plainly not granted to it by any article, section, clause, phrase, or word of the document, nor which can be squeezed from the document by even the most strained reasoning, if (wait for it), Congress could have enacted a penalty on the failure to abide by that illegal power grab and called the penalty a “tax.” Get that? The ACA imposes a penalty on people who fail to buy insurance from private insurance companies. Congress obliges individuals to engage in commerce, in other words, rather than merely contenting itself to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” which is what Article I Section 8, Clause 3 actually authorizes it to do, in respect of people who are engaging in those sorts of commerce.
Not even the clowns on this court could get five votes in favor of a power to oblige people to buy a new car every three years in order to support the personal transportation industry in America. Remember, the industry which provides the means for individual Americans to live anywhere outside the most densely populated parts of the Northeast Corridor is one the fruits of which are of much greater importance to many more people on a much more frequent basis than the activities of health insurance companies, doctors, or hospitals. Such an enactment would avoid the “free rider problem” of people who insist that their beat-up ol’ bangers (my 2000 Chrysler Concorde, which I picked up 16 years ago yesterday with 6 miles on the odometer, rolled 235,000 miles yesterday evening) are sufficient for their needs. We folks who persist in driving a car until the wheels fall off by doing so deprive the automobile manufacturers of the cash flows necessary to fund their research and development to comply with ever-more-stringent CAFE standards because global
warming climate change.
O! but let us not lose faith in the creativity, the
revolutionary consciousness (cf. Solzhenitsyn’s chapter on “The Law as a Child,” in Vol. I of his Gulag Archipelago) Solomon-like wisdom of our judiciary. Congress cannot make you engage in activity. But it can tax your failure to do so (according to the RevTrib Supreme Court), and if you don’t pay the tax it can imprison you for that failure. And here’s where Chief Justice Krylenko Roberts really extended the known boundaries of American jurisprudence. You see, Congress didn’t call the penalty for failure to buy health insurance a tax. The administration and its lapdogs in Congress, in lying selling to the American public this abortion of a statute, repeatedly and explicitly disclaimed that it was a tax. But Krylenko Roberts held that Congress could have called it a tax, and because it could have called it a tax and relied upon its taxing power to exercise indirectly a substantive power denied to it by the document itself, therefore it was a tax and therefore the individual mandate is constitutional.
Wow. I mean, just wow. Think of all the meaningless formalities which we can, under the
Krylenko Roberts Doctrine now dispense with. The senate refuses to ratify a treaty? No problem: It could have ratified the treaty, and therefore it did, and therefore that treaty, “constructively ratified,” we may call it, is now under the Supremacy Clause part and parcel of the highest law of the land. Congress refuses to fund a program — oh, say, handing money to the baby cadaver salesmen at “Planned Parenthood”? No problem: Congress could have called that appropriation an expenditure for “public health,” and therefore the administration can keep shelling out tens of millions of taxpayers’ dollars.
But it gets even better: Remember, the substance of the
Krylenko Roberts Doctrine is that what matters in terms of the question, “Did Congress have the constitutional power to enact this provision?” is not, you know, whether the document actually or necessarily by implication grants that power, but rather whether Congress might have chosen to slap a monetary penalty (which the RevTrib Supreme Court can then call a “tax”) on a person’s conduct inconsistent with the desired behavior. Let’s think of this in terms of the Fifth Amendment. Oh no: We’re not forcing a criminal defendant to testify against himself. We’re just making him pay the additional expenses of proving his guilt without his cooperation. I mean, can you say “externality”? It costs money, dammit, good money that has to come from the public fisc to prove up a crime without a confession (hence, as Solzhenitsyn points out, the organs’ single-minded focus on obtaining those confessions, by means he and others (see, e.g: Dolgun) have described in detail). So you don’t have to testify; oh no, you’re perfectly at liberty to sit there mute in the courtroom. But by God we’re going to make you pony up for getting all those eyewitnesses in, all the forensic proof, the DNA testing, and all that. And the beauty is that because it’s a tax (remember the Krylenko Roberts Doctrine, dear children), its imposition is utterly independent of our defendant’s actual guilt. I mean, the money had to be spent, after all, and if the defendant is innocent, then there’s no reason he shouldn’t have testified to that effect, right?
Similarly, we’re not forcing you, Gentle Reader, to march in support of Dear Leader’s non-public deals to hand nuclear weapons to Iran. But because the rest of the world, and especially Israel, will be much likelier to accept that deal if it knows that the entire American population is behind it, and the costs of ramming Israel’s physical destruction down its throat are much greater in the face of its opposition, we’re going to impose a money penalty (oh, we might have called it a tax, and therefore it is a tax, and therefore Congress had the power to impose it) on your failure to turn out for the scheduled Mass Demonstration demanding
death for Zinoviev and Kamenev, the Trotskyite dogs and imperialist stooges immediate implementation of an Iranian nuclear weapons program. By like token, we’re not forcing you to enroll your children in the Young Pioneers, or the Bund deutscher Mädel, or the Red Guards, but your unreasoning refusal to enroll them means that the school system must spend that much more time and greater resources educating them in Mao Thoughts the Führer’s Will the precepts of the Great Helmsman’s Short Course their civic duties in respect of the “Affordable” Care Act, and therefore a money penalty, which we might have called a tax but didn’t, is obviously constitutionally proper.
See how much can be accomplished through the
Krylenko Roberts Doctrine?
The second case which Gentle Reader might recall is the insurance exchange case. You’ll remember that, in order to compel the states to establish their own insurance exchanges under the “Affordable” Care Act, the availability of financial subsidy for the (now wildly-escalating) premiums was very carefully limited to those who purchased policies through exchanges established by “states,” which the statute very carefully defined to mean, you know, the 50 states of the union (and, I recall, territories and possessions as well). All of those actors are, at the risk of pointing out the obvious, geopolitical entities, with physically-described borders. They are not agencies or instrumentalities of anyone, like, for example, the federal Department of Health and Human Services. Well, most of the states had better sense than to pour money down that rat-hole, and so Dear Leader’s administration set up a federal insurance exchange for people in those states, and then — here’s the flagrantly illegal part — began doling out money for policies purchased on that exchange.
RevTrib Supreme Court upheld the illegal expenditure of public funds for an unauthorized purpose, because, well, Congress might have said “federal government,” or even “department,” and it was really important for this statute to work so we’re just going to act as if Congress actually had done what it didn’t do at all, namely include HHS within the definition of “state,” or alternatively just go ahead and authorize subsidy payments for policies bought through the HHS-run insurance exchange. And lo! the outlay of billions of dollars is magically validated.
We may call this the “Statutory Error Doctrine”. You see, when Congress has, through oversight (obviously it must have been just a drafting error, because reasonable minds simply cannot disagree on something so important, after all, as whether to plonk down billions of dollars on socialized health care, much in the same fashion as all sensible men being, per Disraeli, all of the same faith), omitted to authorize the administration to take Action X, whatever that may be, then the
RevTrib Supreme Court will correct that li’l ol’ drafting error, and will supply what Congress plainly meant to have said, were it fully mindful of its duty to the Party.
Dear Leader’s administration is now advocating what we might call the “Statutory Omission Doctrine,” in which the
RevTrib Supreme Court may supply, not merely a missing or obviously incomplete definition, but an entire statute which plainly Congress would have enacted, but for its truancy in obeying the Holy Writ of the Light Bringer. You see, Congress, which under Article I, Section 8, Clause 4 has the power to “an uniform Rule of Naturalization,” and has done so. Those rules provide for deportation and other nastiness for folks who come here illegally. Congress has not chosen to exempt from those rules the parents of children who are, pursuant to the Fourteenth Amendment, citizens of the United States by right of birth. Very awkward, by God! as the Duke of Wellington observed about William IV’s rant at the Duchess of Kent.
Some stupid redneck dirt lawyer might suppose that Congress, realizing it cannot deport minor children who are, by constitutional right, citizens and thus have a right to stay here, determined to leave in place the disincentive of family separation to discourage parents from creating such “anchor babies” in the first place. Fine: Your child can stay here because she’s a citizen, but your country ass is getting shipped back to Guadalajara, lady. You’re perfectly free to take your citizen-child with you or leave her here. If you leave her here we’ll provide for her, but you’re leaving. Speaking as a father of three wonderful boys, I can tell you that is one powerful disincentive. It puts, after all, the most painful burden on the only decision-maker (the pregnant woman) capable of preventing the situation from arising. The infant cannot decide for herself, after all. The father in fact cannot really decide. So we’re going to make that woman wager the most sacred of human bonds against her desire to violate United States law.
Dear Leader does not like this. He does not like this because those parents are reliable sources of money and political support. The ones who eventually are able to vote (e.g. the anchor baby herself when she turns 18) reliably and extremely heavily vote Democrat. So he has decided to exempt from the operation of the “uniform Rule of Naturalization” the parents of those anchor babies. On a blanket basis. He’s decided that the importance of keeping in place a permanent dependent class of Democrat electoral cash and support is more important than his own constitutional duty under Article II Section 3 that, “he shall take Care that the Laws be faithfully executed[.]”
Thus far he’s gone zero-for-however-many on injunctions preventing his administration from implementing this illegal program, which he calls, of course misleadingly, “Deferred Action for Parents of Americans”. It’s not “deferred” action, but the permanent abandonment of action, and is widely known to be such. Well, now the
RevTrib Supreme Court has agreed to hear the administration’s appeal of the most recent such injunction.
We’ll have to see what
Krylenko Roberts and his colleagues do. I firmly disagree with the linked article that, “There are reasons to be sympathetic to President Obama’s efforts to overhaul America’s immigration laws. The system has been broken for decades, and political elites have proven unable or unwilling to fix it.” It is no such thing. It has not been enforced for decades, and this has created a painful and in many cases tragic set of facts on the ground. But that is not the fault of either Congress or the law itself. It is, rather, the logical outcome of hundreds of millions of politicized decisions by the ought-to-be-enforcers of the immigration laws. Imagine if hundreds of millions of people and institutions simply refused to comply with the Internal Revenue Code. Imagine if banks refused to produce and keep the financial records necessary to track taxpayers’ transactions; imagine if employers simply destroyed their payroll records after each pay period, and refused to remit income or payroll taxes. Imagine if everyone simply stopped filing returns. Imagine if all this went on, not for a season or two, but for decades. Imagine that all this went on with the active connivance of the Internal Revenue Service. Now, would it be intellectually or morally defensible to say that the Internal Revenue Code “has been broken for decades”? Bullshit! And the same response is due the claim that the immigration system is “broken,” unless by “broken,” you mean that the laws have been openly, flagrantly, and with the encouragement of government broken. Well, yes, the immigration laws have been broken. And for years the Fifteenth Amendment, prohibiting the denial of voting rights based upon the color of one’s skin, was openly and with the active cooperation of government “broken.” Where is the principled argument that we should have, in the 1960s, and in lieu of adopting and ferociously enforcing the Voting Rights Act, just rolled over and allowed the South to continue on as before?
But will the
RevTrib Supreme Court formally rule that, gosh darn it, this is Just So Important, and when Something is So Important, the president has the inherent power to put in place whatever program he deems expedient? I’ll remind Gentle Reader that James II’s blanket exemptions from the religious disability laws were a principal reason (although not the final: that was the birth of a male heir) for the erosion of support which ended in the Glorious Revolution. But will we have formally announced, with all the gravity that can be mustered by an institution which has so far beclowned itself as to rule that homosexual “marriage” is a fundamental right guaranteed by the Fourteenth Amendment, that when the president deems something sufficiently important, the allocation of “all” (not some, most, or “generally”) “legislative Powers herein granted shall be vested in a Congress of the United States” is no longer operative?
We might call such a notion the “Constitutional Omission Doctrine,” and set it forth as follows: “If the president shall deem an issue sufficiently important, and if the Congress shall refuse to enact such legislation as the president shall deem necessary or expedient to address such issue, then the president may act in such fashion as the president shall deem appropriate, and such action shall have the force of law.” That is pretty much the position taken by Dear Leader and his supporters. We have an “immigration crisis,” with a “system that is broken,” and Congress refuses to act because of “partisan gridlock,” and therefore the president has the inherent “authority to act when Congress won’t.” Because obviously the constitution’s drafters must never have imagined that Congress and the president might disagree on a matter of significant policy. It’s just plain as day that they never intended that the federal government might be unable to act as a president thinks it ought to act because Congress has decided an issue contrary to the president’s desires. And if they never intended that situation to come to pass, then the conclusion is inescapable that they obviously meant to include a provision in the constitution granting the president that authority, and the fact that the drafters included no such provision is merely an oversight, a mistake. Like defining “state” such that you can’t shoe-horn “Department of Health and Human Services” into it. Since we have a “living document” on our hands (all those silly little words about how the document may be amended are merely illustrative of one alternative method among many, after all), the fact that a fail-safe clause is nowhere to be found in the words the drafters actually used is no impediment to our now, 226 years later, recognizing that the president in fact has such a power.
I would caution the
RevTrib Supreme Court against recognizing any such authority. Once you recognize the ability of one branch to bypass another and exercise legally binding power over an issue or set of issues which the document on its face places squarely within the remit of another branch, what is then to prevent the doctrine’s application to the RevTrib Supreme Court itself? Obviously, after all, the drafters never intended to create a situation in which a number of unelected, unaccountable nincompoops would usurp the expressed policy decisions of the legislative and executive branches. I mean, the whole point of freeing ourselves from a monarchy, an prohibiting titles of nobility, was precisely to ensure we never became the playthings of a court and court party.
For example, consider the Defense of Marriage Act. Passed with overwhelming bipartisan support and enthusiastically signed by a president from the party not in control of Congress, the
RevTrib Supreme Court declared it unconstitutional. We ignore the argument over whether the statute was a good idea in the first place. Reasonable minds can differ in good faith as to whether the federal government needs to get into the business of deciding who is married and who is not, at least for purposes of federal laws where the marital status of an individual is a relevant determination. Reasonable minds can differ in good faith as to whether marriage-is-what-you-call-it is a good policy position (I think it’s a bad policy position). But the reasonableness and good faith of people on either side of those sorts of arguments played no part in the RevTrib Supreme Court decision. According to it, the American people, acting through their lawfully elected representatives and approved by their lawfully elected president, did not have the right to decide the issue as they did, because the constitution does not permit that substantive outcome.
But hist! Let us now apply the Constitutional Omission Doctrine to this dispute. Congress determines that the
RevTrib Supreme Court got its decision on the Defense of Marriage Act wrong, and because the drafters obviously intended to grant Congress the power to correct flagrantly bad court decisions (really? can it be that the drafters desired that a decision once blown should remain blown for all time, until the very institution that buggered it up climbs down and admits as much?), be it and it hereby is declared that the decision in this-that-or-the-other-case is reversed, set aside, and for naught held. See how simple that was? About as simple as the Democrat-controlled Congress in the late 1950s or early 1960s just un-doing Brown v. Board of Education. Woo-hoo! Plessy is once again the law of the land. Gentle Reader can come of with just about any number of parade-of-horribles decisions that might fall prey to the doctrine, to the consternation of whatever group(s) or interest(s).
But Gentle Reader will tax me with hyperventilation. Of course no Congress would ever do such a thing! It would be politically impossible! Never come to pass. People would never stand for it! And so forth. And no administration would ignore the repeated cries for help of its overseas ambassadors, then stand by idly while an American ambassador was slaughtered like a dog and literally dragged through the streets, then send multiple representatives to lie repeatedly to the American public about why it happened. No administration would ever weaponize the federal tax gathering apparatus to shut down the political affiliations of its political opponents, then instruct its senior administrators to destroy evidence and lie to Congress about its destruction. We’d never have an administration concoct an attack on two U.S. warships — when no opposing forces were ever in the area on the night in question — and use that non-existent attack to obtain an authorization to wage years of undeclared but very much real war halfway around the globe. [I’m referring, by the way, to the Gulf of Tonkin “Incident,” the non-existence of the second “attack” of which is related by no less personage than Vice Adm. Stockdale, who was in the air over the Maddox and Turner Joy that night, and in whose book he unambiguously states that the second “attack,” used by LBJ to get the Tonkin Gulf Resolution passed, never happened. He had been named in the European edition (but not, significantly, the Pacific edition) of Stars and Stripes as having been present on the scene, and he spent the entirety of his long captivity terrified that his captors would get hold of a copy of that edition, see his name, and torture out of him his recollections of that night. But they never did.]
Who are we to say what some future president and Congress may or may not do?
The last sentence in the last book of the last volume of The Gulag Archipelago reads: “There is no law.” The present administration, aided joyfully by the present constellation of the
RevTrib Supreme Court, have marched us a good way down that same path. Here’s hoping they have the minimal integrity not to take us that last step.