March 30, 2012

“Justice Breyer on Obamacare: ‘I Haven’t Read Every Word of That, I Promise’”

Good. Then throw the whole damn thing out, why don’t you?

Not to get all linguistic on all of you, but one of the arguments made by Justice Kennedy, with respect to the question of severability (and which spoke against Justice Bader Ginsburg’s pleas that the SCOTUS has, as part of its function, to “salvage” bad legislation on behalf of a legislative body since voted out by the American people), should be familiar to long-time readers of pw.  Kennedy asked if, by retaining the law should the mandate be removed, would this not be an act of extreme judicial activism, the reason being that, once the mandate was removed, the law would be something new entirely — essentially, a completely new and different text from the one intended by those who passed it. [Note:  an earlier version of ObamaCare passed the House with a severability clause.  The final bill, after its Senate journey, did not.  We can therefore fairly assume that the decision to remove it was a conscious, legislative one — likely based on some political calculation that SCOTUS would be less likely to strike the whole thing down if they weren’t given a choice to strike down just the mandate.  At least, that’s a compelling explanation, based on the legislative history].

And that’s because on some theoretical level, Justice Kennedy knows that changing the text so dramatically creates a new text — and essentially enshrines into law the intent of the SCOTUS, who become de facto super legislators under such a procedure,  scuttling or ignoring the intent of those who wrote the law and of the legislators responsible for passing it while simultaneously pretending that they are ruling on that same law.

They wouldn’t be.  They’d be ruling on what is essentially a sloppy “re-write” of the law and ascribing the intent of this new, significantly changed text — their creation — to the original legislators.

That appears to strike Justice Kennedy as a profound example of judicial activism.  And he’d be correct in that position.



Posted by Jeff G. @ 1:13pm

Comments (25)

  1. Sec. 137. Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties and fortunes, and by stated rules of right and property to secure their peace and quiet. It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him, to make a prey of them when he pleases; he being in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men; no body being secure, that his will, who has such a command, is better than that of other men, though his force be 100,000 times stronger. And therefore, whatever form the common-wealth is under, the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions: for then mankind will be in a far worse condition than in the state of nature, if they shall have armed one, or a few men with the joint power of a multitude, to force them to obey at pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment unknown wills, without having any measures set down which may guide and justify their actions: for all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds, and not be tempted, by the power they have in their hands, to employ it to such purposes, and by such measures, as they would not have known, and own not willingly.”

    John Locke, 2nd Treatise, CHAP. XI.: Of the Extent of the Legislative Power.

  2. Well, Pelosi said we’d have to pass it to see what was in it – Maybe Breyer would need to read it to know how he’d rule…. nah, he’s got his mind made up already, who am I kidding.

  3. It would be nice if Kennedy actually moved towards an intentionalist reading of the Constitution.

    I’ll believe it when I see it, but this makes me more hopeful, at least for this case.

  4. Anyone want to play Criswell? Perhaps the messiest outcome will be the abolition of the mandate but leaving the rest of the ACA stand as is. As a believer in Finagle’s Law (cf. Larry Niven), that sounds like what the fates have in store for us.

  5. The justices didn’t sound too eager to be put in a position to have to cherry pick (or have their law clerks) rewrite the bill.

    Scalia was particularly scathing in his questioning about that. The SG withered under the assault. Twas a thing of beauty.

  6. Yeah, if they let any of the law stand, they won’t be going through all 2000+ pages of it to massage the language. They will probably leave it to Congress to do that, unless they just ashcan the whole miserable thing.

  7. Still my favorite line was from whomever observed that the critters voted FOR the bill because of the various bits and pieces as configured at the time.

    So if SCOTUS were to strike, for example, The Cornhusker Kickback—under the Venality Clause—they’d be producing a bill that would not have passed congress in the first place.

    Yes, he said “venal” in relation to the kickback, and it was a beautiful thing to hear.

  8. Dear Mr. Locke:

    Invest in some paragraph breaks, if you would.

  9. I thought the Cornhusker Kickback never made it in.

    That’s what I recall, anyway.

    Just the fact that it was even considered should have been enough for honest people (who the heck am I kidding?) to not even consider going forward.

  10. That Locke stuff is even more than 100 years old.

  11. 100 years old? Weren’t there dinosaurs back then?

  12. A federal judge has upheld most of Wisconsin’s law curbing collective bargaining rights, but he sided with unions in at least one key area by saying union dues could automatically be withdrawn from public workers’ paychecks.

    The ruling Friday comes in a lawsuit filed by a coalition of unions fighting the law championed by Republican Gov. Scott Walker. Union attorneys declined immediate comment.

  13. Taranto:

    Toward that end, in 1968 Brezhnev put forward an eponymous doctrine: “When forces that are hostile to socialism try to turn the development of some socialist country towards capitalism, it becomes not only a problem of the country concerned, but a common problem and concern of all socialist countries.” The Soviet Union would intervene militarily to keep any communist country communist, as it had done in Czechoslovakia and in 1956 in Hungary. Communism was a Roach Motel. Countries check in, but they don’t check out.

  14. Some awesome Democrat whining:

    “Scalia said [Wednesday] that it was totally unrealistic to read the whole law. Sen. Nelson didn’t think it was too much for the justices to know what they’re talking about when questioning the law’s content,” said Nelson spokesman Jake Thompson.

    “It seems fitting that Justice Scalia’s attempt at humor instead displayed his ignorance of the law. Sen. Nelson hopes the justice will concentrate on the actual instead of the perceived or interpreted views as he weighs the laws against the Constitution,” Thompson added.

  15. Sen. Nelson, I’d like to introduce you to Rep Pelosi…

    And Justice Breyer, for that matter.

  16. “. . . displayed his ignorance of the law . . .”

    Standard operating progressive stupidity, going the bridge too far. Scalia’s hypothetical in no way demonstrates he doesn’t know the fate of the Cornhusker Kickback. Yet the dumbass spokesman Thompson hangs himself anyhow.

  17. Obama’s “New” foe.

  18. I’d be willing to bet that none of the Senators who voted for it read the whole thing. I’m talking about the 2700 page legalize monster but letting them off the hook for all the times in there that some sentence changes an entire federal law which would also have to be read to understand what was being done.

    All they read, if anything, is an outline of a precis of a Cliff’s notes version that the staff puts together in regular English for them.

  19. I believe many of them are on the record saying exactly that, Geoff.

  20. 100 years old? Weren’t there dinosaurs back then?

    Still are. Look at Congress….

  21. Rep. Conyers (D-MI) Admits Health Care Bill is Indecipherable

    Of course he isn’t the sharpest knife around but then again he has said he doesn’t read any of them. Dems don’t have to as the leadership will tell them how they will vote.

  22. Obama’s “New” foe.

    pay backs a bitch baracky for your 1st(2nd?) sotu

  23. SCOTUS voting to toss out the AHA = Judicial Activism!!!

    Which is bad now, I guess. Unlike when they vote to overturn other reichwinger legislation. Or at least that’s what they say in Slate.

  24. Oh hey LTC John, How you been?

    Are you still in or did you pop smoke yet?