How intentionalism can save us from Obamacare: addressing the left’s big canard
We’ve all heard it by now: “ObamaCare is the law of the land!” — the implication being, even from some Republicans (and John McCain), that a law passed using parliamentary gimmicks and tied to budget reconciliation cannot possibly be dealt with by the House in what is, in fact, a budget standoff.
But those constitutional and ethical points aside (the Dems passed the law in a corrupt manner, foregoing regular order and excluding the GOP from the process, lying to the electorate about what it offered and how that would affect individual healthcare, which was then in turn adopted by the Supreme Court as something other than what was proposed, in an act of judicial activism so profound that it essentially legitimized rewriting of statutes from the bench); and bracketing for a moment the common conservative rejoinders that SCOTUS has also ruled constitutional slavery, segregation, internment, etc (and so is hardly infallible), what I want to focus on here is the linguistic and intentionalist aspect of what is happening, then ask input from those with a better understanding of our legal process than I hold in order to bring some clarity to my argument.
To wit: after SCOTUS ruled on the constitutionality of the Affordable Care Act, Obama has gone through and made a number of changes to it — that is, altering the law that was both passed and adjudicated (waivers, deadline changes, etc) — creating what you all now know, from years of having read me, is not an “expanded text” but rather an entirely new one, and one in which winners and losers are selected by the President based on cronyism or political expediency.
Therefore, what we are being told we must follow is a law that was never passed by the Congress, and never adjudicated by the Supreme Court; that is, it is an entirely new law, a different law, and a law that does not have the imprimatur of Congress — and as Congress is currently constituted, could not gain legislative approval if revisited by the direction of the Court.
This is the case because Obama has “fundamentally transformed” what was already a terrible, non-transparent, and deceitful law into something entirely other through his various decrees and waivers and delays, sowing inequity of opportunity, finding ways to exclude Congress from bearing any burden from the exchanges, throwing sops to big business, etc — and make no mistake, the unions will surely follow.
Which means that the law as passed is not the law that we are going to be required to follow should the House cave here.
In fact, any House capitulation would be a direct violation of its constitutional duty, because they’d be allowing for the budgeting of a law that wasn’t passed by the legislature, wasn’t signed by the President, and wasn’t upheld by SCOTUS. Instead, they’d be funding a law that doesn’t linguistically and factually exist — because the text has been changed and rewritten — and forcing (certain) Americans to follow this new and very different text, one not passed by Congress or signed by the President, under penalty of well, “tax” (though we were told it wasn’t a tax, up until the time it needed transmutation into one to be held constitutional in the Roberts’ rewriting of the statute). Twice the Supreme Court has held that the Executive (under Nixon and Clinton) does not have this power, so precedent would be on the side of the intentionalists and originalists, for what that’s worth.
So the question becomes — and this goes back to language and intentionalism (which, I know — fundamentally unserious, but stick with me, “realists,” and let this “purist” have his say) — should the House fold, and ObamaCare gain funding going forward, from a legal perspective, would a citizen have standing to challenge the constitutionality of the law using the legal reasoning that, as a law, the current iteration is not the law that Congress passed, not the law the Court (erroneously) ruled upon, and so is not binding under our system of governance?
That’s where I’d need to hear from lawyers. Because if this is in fact the case, then perhaps an alternative strategy would be not to let ObamaCare receive funding and then implode on its own dysfunction; but rather, allow it funding so that it can be challenged should someone have standing to do so, the argument again being that the law being implemented and enforced does not exist and therefore is not a law at all.
I’ve been writing for years about why it matters how we get there — only to be harangued by both leftist antifoundationalists (to whom the ends justify the means) and GOP “realists” who cling to incoherent linguistic ideas about textualism that are in fact nothing more than intentionalism stripped of the necessity of understanding the originary intent (itself tied to perfectly sensible legal conventions about making that intent as clear as possible; so this isn’t about mind reading, but rather about language and the way signs actually function in the arena of interpretation vs the way signifiers can be used in that same arena to work around originary intent).
So let me ask this of those of you with legal training: where would standing come in should the CR pass “cleanly”? And, from a political standpoint — assuming such standing exists — would this not give Roberts the chance to right a remarkable and unforgivable wrong perpetrated against the American people by an activist judiciary? [edit: at least one group believes so and has already filed suit under a similar line of reasoning; now it's important to explain how that reasoning works to people reared on bromides about the "democratization" of interpretation and "Living Constitutions". h/t Pablo]
Too, wouldn’t the prior ruling almost ensure, politically, that the American people never again grant the progressive left a supermajority by which they could revitalize and pass the “newer” law?
I’m interested in your thoughts. Discuss, please.