October 3, 2013

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.

 

Posted by Jeff G. @ 10:12am
56 comments | Trackback

Comments (56)

  1. Judicial Watch has filed suit pursuing the unilateral rewrite line of reasoning. It seems obvious enough that it isn’t legal, but then, John Roberts.

  2. If you find this useful or sensible, I ask that you please retweet it.

    I’ve long said language is the bulwark but against tyranny and for its eventual ascension, depending upon what we believe it is we’re doing when we encounter texts for purposes of interpreting them. From the standpoint of signification and linguistic coherence, there is absolutely no arguing that Obama’s alterations to the text, which created winners and losers and reset deadlines, etc., creates of what was passed something new and different that wasn’t.

    And it is through this argument that we may be able to force the Court to send OCare back to the legislature, undoing the machinations of a temporary supermajority who used gimmicks and the like to force socialized medicine on a people who very clearly don’t want it.

    Thanks in advance.

  3. Will the leftists forthrightly argue *** Once pass a protean fraud as a protean fraud, then never expect it to remain anything certain, but truly believe it will ever be in motion, a thoroughly disruptive “process”, a spinning-top, a will-o’-the-wisp ***? After all, this was Woodrow Wilson’s view of all morality in action: only see his vow to parents that he would educate their children to be nothing like them at all, to be always to be newly iterated men.

  4. Thanks, Pablo.

    I’d love that people see, in rather simple terms, how exactly that works from the perspective of language, so a RT would be helpful.

  5. The unilateral and illegal actions and the selective enforcement, carve-outs and special favors by the Executive in this matter have precisely zero to do with the constitutionality of the law itself.

    The law is the law, no matter how shoddily and deliberately the Executive chooses to mal-enforce it. I understand the intentionality thrust here, but what you are presenting is an argument against the actions of the Executive, not an argument against the constitutionality of the law itself.

    And that is an entirely separate row to hoe.

    I might insist on calling my coffee table a dog, but it’s not going to fetch my slippers. If I were CEO of a corporation, I might even seek to require my employees to provide fresh food and water on a regular basis for my “dog”, and even to take my “dog” for walks.

    That wouldn’t be a good idea, but the injustice wouldn’t somehow give me standing to sue based on the notion that the furniture store sold the company a fundamentally defective dog. They didn’t. They sold a coffee table, and it doesn’t cease being a coffee table because of a defective boss.

    That’s my take, anyway.

  6. Something is mucked-up with Pablo’s link, but this looks like it could be the source.

  7. The Judicial Watch suit seems the proper/effective route to go in addressing this issue, and I can see the intentionalism argument even providing aid and comfort in their making their case… but their case puts the blame on the actions of the Executive in the “enforce something different” arena.

  8. Here is the link directly to the Judicial Watch release about the lawsuit.

  9. I’m kinda with VekTor on this one. If Obama’s failure to adhere to the terms of a law, or his misinterpretation of the terms of a law, were enough to change that law into something else, then we’re in real trouble. Because the Congress, the President and the Court have twisted our Constitution beyond recognition, so if we follow the same arguments, it would mean that the Constitution is invalid, since the contract agreed to by the States is nothing like the regime we live under today. The invalidation of a mutant Constitution might be useful in terms of states opting out of the Union, but it would be bloody awful if we were ever to rein in our existing leviathan.

    I think we’re on safer ground if we stick to the argument that our federal government has taken on myriad duties it is not authorized to take on, and that our Executive isn’t faithfully executing the laws, regardless of their appropriateness under traditional interpretations of Constitutional limits.

  10. I don’t think we can pick and choose when intentionalism applies and when it doesn’t. Obama’s “mal-enforcement” is a change in the law, because it is his mal-enforcement that is being given funding as law, should the House relent. That is, Obama will then sign onto a budget that enforces his new rewrites to the law that passed, and that’s the text that achieves the status of law. It is a fundamentally altered text that carries the force of law; how that came to be, in this instance, is immaterial to the fact that it is.

    In fact, Squid actually makes the point for me: we live in a post-Constitutional period — and have for quite some time — precisely because we’ve allowed for linguistic incoherence to become institutionalized as legitimate.

    To root that out is to root out the very power that gives rise to abuse and illegitimacy — to assaults on our Constitution.

    The Executive is doing more than enforcing something different. He has changed the law so that he may enforce something different. Or, if you prefer, the enforcement of something different — once it is funded by Congress — shifts the blame back to the legislature for implementing a law that is different from the one passed.

  11. “The unilateral and illegal actions and the selective enforcement, carve-outs and special favors by the Executive in this matter have precisely zero to do with the constitutionality of the law itself.”

    This would be the case were not the Congress — as I expressly noted in the argument — set to fund the law as it’s been unilaterally and illegally changed. Once they do, they, as the legislative body, are funding a different law, one that because of the “unilateral and illegal actions and the selective enforcement, carve-outs and special favors by the Executive” is necessarily different. They’d be granting funding to a text that they didn’t vote on. Which means they’d be funding a text as law that the legislature didn’t sign on to.

  12. I disagree, Jeff. The funding is for the law as written, but Obama has announced his intentions to explicitly deviate from that text as written, and by implication to say that his Justice Department will choose not to enforce the laws and penalties as written.

    None of that changes the legitimacy of the funding of whatever was passed into law via utterly foul means. Let me try an analogy.

    Suppose as a Congress, laws are passed to set up a welfare program designed to get people to eat more carrots, because hey, carrots are good for you. The program as written grants a specific subsidy, “carrot checks” that are sent to anyone who is willing to go on a website and state that they intend to use that money to buy and eat more carrots. Furthermore, the law states that if the consumers cannot provide receipts on demand showing carrot purchases to back up their funding, they will be subject to penalties up to and including jail time.

    It’s a stupid law, but there’s nothing fundamentally unconstitutional about such a law. Congress appropriates funds for the Carrot law. Now, President EvilPants (who is not Barack Obama in this analogy for all you “you’re a racist” yellers out there) hates him some carrots. Hates ‘em with a passion. He even threatened to veto the Carrot law, but it passed with veto-proof majorities.

    Now, he’s the boss, right? Who’s to say that he has to go along with spreading the nastiness of carrots all over the place. That’s just wrong, see?

    So he goes out in a press conference and tells people that if they choose to spend that Carrot law money on something else, well then, he’s going to direct the Justice Department to not enforce any complaints about people not following the Carrot law, but still taking the money and spending it on Cheetos. He does this in part by granting waivers to people who want to say that anything orange-colored can be treated as a substitute for “carrot” in the interpretation of the law.

    The Carrot lobby is outraged. They worked hard to get their signature initiative turned into an ongoing benefit program, and now the intent of their law is being subverted based on the personal preferences of the Executive.

    I can see a strong case being made that the Executive is engaging in lawless behavior in violation of the proper separation of powers. Congress might even be so outraged at this turn of events that they might threaten to not fund the Carrot law until everything is sorted out.

    But I simply don’t see any coherent argument that the fallacious waivers that the Executive is granting somehow makes the Carrot law unconstitutional, on the basis that the net effect of the funding is that a “law” is being enforced that wasn’t passed.

    It’s almost the exact opposite, Jeff. A law that was passed is not being enforced. That law is still a constitutionally valid law (stupid, but valid). The corruption of the Executive in that matter doesn’t create out of whole cloth a “law” simply because the net result is different than the intent of the original text.

    But what baffles me the most is that you seem to want to take that idea and go full-gonzo with it and claim that not only is the corrupted net effect a “law”, it actually is the original law, and thus there is standing to strike down the original constitutional law on that very basis. That seems to turn intentionalism inside out, from what I can tell.

    What we would have in that case is a sanctioned lawlessness by the Executive, not a case for eliminating the law that the Executive chose as his mode of lawlessness.

    It seems that down that road lies not only madness, but as far as I can tell a mechanism for destroying all and any law going forward.

    Please tell me that was not your intent.

  13. Obama and the Democrats do not see what he is doing with the exemptions as being something that is or could possibly be illegal because it is “democracy” in the highest sense that they think that it can exist at this time.

    [T]he paradox of progressivism — how to reconcile a professed commitment to greater democracy with a powerful conviction, in conflict with the preferences of the people, that justice requires more centralized government and more elite rule … It’s not merely that deliberative democrats believe that their theories give expression to something better and loftier than what the majority chooses.

    The key is the claim that the policies that theoretical reason demonstrates are fair and just are democratic in a higher sense than the policies that the people have voted for, or want to adopt in the here and now, or may wish to enact in the future. … It’s not merely that deliberative democrats believe that their theories give expression to something better and loftier than what the majority of the electorate chooses. It’s that the choices people would make — were it not for their poor education, combined with passions and prejudices corrupted by the imperfections of social life and the inequities of the market economy — are what deserve the designation democratic.

    “Living Law” that is law that is changed, refined, altered, by a Progressive leader, to make it more perfectly fit the conception, that is operative that day, of the highest democratic aspirations of a perfected polity. The “Vanguard” will have to make the decisions for all until the “New Progressive Person” becomes the normal human.

  14. Essential “work.”

  15. “I disagree, Jeff. The funding is for the law as written, but Obama has announced his intentions to explicitly deviate from that text as written, and by implication to say that his Justice Department will choose not to enforce the laws and penalties as written.”

    – which Congress is aware of. Meaning, they know that he intends to change the law as written (and has in fact done so unilaterally) and that he wants them to fund the law with those changes — or, that new iteration of the law, that new text.

    They should not. It’s not the same law. And they know this to be the case, because they are aware of the changes he’s made to it.

    Your analogy makes that point clear: “He does this in part by granting waivers to people who want to say that anything orange-colored can be treated as a substitute for “carrot” in the interpretation of the law.”

    Just as a penalty isn’t a tax and can’t be magically transmuted into one after the fact in the passed legislation — in which it was explicitly argued that the penalty was not a tax, and passed that way — a carrot is still a carrot; while anything orange, or that “looks like” a carrot, is not necessarily a carrot, regardless of attempts to pretend it is so after the fact, and can’t suddenly claim carrot status without the original intent of the law having been violated.

    To change what is a carrot, by some strained interpretation that deviates from what was passed when the law was passed, is to change the law that is being funded. Which differs from the law that passed. Would those who passed the law have accepted that a carrot could mean anything orange? Because if not, they didn’t vote for the law that is now being preposed for funding, which contains that new provision, one that inverts the very specific criterion in the original law.

    So when you write, “what baffles me the most is that you seem to want to take that idea and go full-gonzo with it and claim that not only is the corrupted net effect a “law”, it actually is the original law, and thus there is standing to strike down the original constitutional law on that very basis. That seems to turn intentionalism inside out, from what I can tell,” you’ve got it exactly backward: I’m saying it is NOT the original law because the changes made to it change the text; therefore, if Congress funds what is being presented as the original law with Executive ‘mal-enforcements’ now built in, it is in fact doing precisely what Roberts did and allowing for an entirely new text to be funded, and so given the force of law, even they they know (like Roberts did) that they are agreeing to a statutory rewrite on the fly.

    The standing would be to strike down the law precisely because it IS NOT the original law, and so couldn’t be funded by Congress, it having never been passed in its current form.

  16. I’m feeling kind of ill today. I think I’m going to rest.

    The world seems to spin fine without my input, so no biggie.

  17. We can’t let it get out there that this is for [Boehner] and [Reid] to ask the President to carve us out of the requirement of Obamacare…”

    Everyone who is surprised, stand on your head.

  18. Yeah Beck was beyond furious about that yesterday Di. He was saying that no one should donate to the GOP again until Boehner steps down from his congressional seat. That there could be no GOP a sa real entity with a weasel pus bag like Boehner in it. Then later on he said that we should add Lindsey Graham and John Cornyn to that list of heads for the GOP to set rolling in atonement.

    Tough love.

    I’m all for it.

    Except I’m already not donating to the GOP so…

  19. ““ObamaCare is the law of the land!””

    Yep, been hearing that a lot.

    Jeff’s points are, of course, excellent, but I’ve just been asking people “Isn’t changing the law of the land exactly what Congress is supposed to do??” You’ll either get an instant subject change or an attack. Guaranteed.

  20. The border fence got defunded and nobody anywhere on the left complained.

  21. The people trying to portray defunding as extra constitutional madness are the same people who want the president to just ignore the Citizen’s United ruling. (Which he largely has.)

  22. Yeah, Spies. I’ve been getting “settled law!!!!” bleated at me quite a bit, as well. Pointing out that there is no such thing (complete with historical examples) generally sends the bleaters into orbit as their heads explode.

  23. DOMA was settled law. ‘Till it weren’t.

  24. Which I’m cool with. That was actually a good ruling since it embraces states’ rights and told the Feds to get their ass over yonder.

  25. Using the process to effect what is the law of the land is not against the law of the land or unusual or even sketchy or remotely offensive to leftists when it happens to benefit their aims. They don’t object to the defunding of laws. They object to their opposition defunding THEIR laws.

  26. “The standing would be to strike down the law precisely because it IS NOT the original law, and so couldn’t be funded by Congress, it having never been passed in its current form.”

    When you get back from your rest, and/or if you consider it useful, the question I would ask is this: Can you not see how embracing such a theory would legitimize a method for allowing the Executive to force any law that they disliked to be stricken from the books without any Congressional input, simply by deliberately mis-enforcing it and then having a complicit ally sue to have the law stricken?

    It would grant the Executive the ultimate veto effect, which could not be overridden. Laws passed unanimously by both houses and funded could be wiped off the books simply by having a petulant Executive hold press conferences and give lawless directives to the Justice Department.

    Under the “intentionalism veto”, were it to become established precedent in law, there is no way out for Congress. If they fund a law, hoping that the rule of law will be followed rather than the arbitrary caprices of the Executive, they open themselves to having the law thrown out as unconstitutional. If they refuse to fund the law, then the law doesn’t take effect either.

    The Executive would get to pick and choose which laws to unilaterally dismantle via this double bind. This idea invests ultimate power in the Executive, with conformance to the rule of law being used as the very weapon to dismantle the law. The Joker and Saul Alinsky would both be proud.

    Few things are more dangerous than an idea with large (but unexamined) unintended consequences. This notion strikes me as a Pandora’s Box bigger than any I’ve heard in a long, long time. Maybe there’s something I’m missing in this explanation that makes it immune to this kind of jiggery-pokery. If that’s true, I’d love to find out what it is.

  27. You know but do not highlight that the phrase “which could not be overridden” assumes an utter disregard of the very means established to remove such an executive, namely, impeachment. Of course we all know that such means depend on the trial and conviction in the Senate. What we don’t know is the effect of the development of the indictment in the House on the people, from whom in fact all power in the United States flows.

  28. This idea completely cancels out the notion that Congress can have and retain intention in what actually becomes and remains law. In the process of trying to say “the Executive can’t change the law”, you seem to have gone one step further, and seem to not be recognizing that being able to completely wipe out the existence of a law is, in fact, a change to the law… it’s a change into non-existence.

    What mischief could be had with an Executive that wields such a club? Could they not demand that every law, prior to passage, first meet with their own approval and sanction? Here, fellas, here’s a template of exactly what you CAN pass and not have me shatter it to pieces by deliberately not conforming my direction to it…

    This turns laws into monofilament crystalline structures. They will shatter and crumble at the slightest effort of the Executive, and therefore at their slightest whim.

  29. Impeachment is the bluntest possible tool for addressing such an issue, and a country-wrecking amount of damage could be done before such a ponderous process could be completed. Even with that possibility looming over them, if the precedent were established, there would still be standing after said executive was removed to continue with all of the lawsuits that would dismantle the laws in question.

    This would allow an Executive bent on malice to force polonium-210 down the throats of our legal system. Fat lot of good it would do us to remove them after the fact.

    Regardless, in what scenario is the potential trade-off of getting this sort of interpretation of what “laws that are constitutional” means on to the books worth it? Where’s the staggering perpetual benefit that we get which somehow cancels out all future bad outcomes from the consequences of this being the new normal?

    Look, I get the “let it burn” idea. There’s plenty of sense associated with it. If this is all just a smoke-screen to out-Alinsky Alinksy, then I’d like to know. I’d rather go into it with eyes open if that’s the case.

    This does not strike me as a good recipe for ending Obamacare. It strikes me as a good recipe for ending our Republic as we know it.

    Just want to know what the actual intent is here. Because I don’t, and I believe it is up to the author (Jeff) to tell me what his intent is. Because based on my understanding of it , the unintended consequences vastly trump any temporary benefit, and the existing lawsuits seem better suited to accomplishing that goal without dismantling the current legislative structure.

  30. By “such an issue” I

  31. By “such an issue” I take it we are not talking about an Executive unconstitutionally exceeding the limit of his executive powers in the conduct of his office or committing high crimes and misdemeanors apart from the conduct of his office, were the latter to be the case? But if it were a question of the conduct of the President, then impeachment is hardly blunt, but precisely the sharpest tool in the toolbox.

    Still, it seems to me the political question at hand resolves at the question I posed earlier today “Who is sovereign, who rules in the United States of America? The people? Or the national leader, President Barack Hussein Obama?” Or to say that another way, what constitutes legitimacy in the United States?

  32. By blunt (in that case) I meant that the decision was entirely binary, and that was the only real recourse. So if the Executive did 17% bad things, you couldn’t decide to just impeach him 17%.

    It’s all or nothing, which means it would have to rise above a certain threshold. Many Executives have done one or more things that might have qualified as violating their oaths, yet they still were not impeached because it is such a big, binary deal.

    I would favor controls and checks against the Executive that were much more finely grained and able to address narrow issues of malfeasance, but still had some very real teeth, without having to rise to that threshold of outright impeachment.

  33. Yeah Beck was beyond furious about that yesterday[,] saying that no one should donate to the GOP again until Boehner steps down from his congressional seat. That there could be no GOP a sa real entity with a weasel pus bag like Boehner in it. Then later on he said that we should add Lindsey Graham and John Cornyn to that list of heads for the GOP to set rolling in atonement.

    Tough love.

    I’m all for it.

    Except I’m already not donating to the GOP so…

    Tough love also includes telling your Republican represenetative that you can’t support his/her reelection so long as there’s the slightest possibility they will vote to reelect Boehner Speaker of the House.

  34. That’s all well and good over small-ball questions I suppose, but if I’m not wrong identifying this particular question as one touching the very legitimacy of acts and powers in our governance, of a usurpation of the sense of the people that they do not want ObamaCare, outright refuse it, and yet find themselves in the awful position to have it rammed down their throats contrary to their clear opposition? We aren’t talking small-ball. No political question can be more fundamental, that I can see.

  35. I would favor controls and checks against the Executive that were much more finely grained and able to address narrow issues of malfeasance, but still had some very real teeth, without having to rise to that threshold of outright impeachment.

    One might start by insisting that Congress and the Executive recognize and honor the intent of the Framers and the Signers, and shrink the scope of the federal government to fit inside the boundaries intended for it.

    Nobody should care what goes on in Washington! It shouldn’t matter to us, because Washington shouldn’t have any effect on our lives! If we’re going to argue intent, I’d humbly request that we start with the fundamentals.

  36. Pingback: Bob Recommends: How Intentionalism Can Save Us From Obamacare by @ProteinWisdom | The Camp Of The Saints

  37. Can you not see how embracing such a theory would legitimize a method for allowing the Executive to force any law that they disliked to be stricken from the books without any Congressional input, simply by deliberately mis-enforcing it and then having a complicit ally sue to have the law stricken?

    This is already happening: green groups and the EPA are working to get laws shaped and legal decisions determined, with EPA lawyers “settling” lawsuits in ways that further empower green groups.

    That being said, an executive deliberately mis-enforcing laws in order to have them sued to be overturned can be thwarted by a Congress that passes the law again. And of course, sdferr is correct: an executive who is deliberately mis-enforcing the law is breaking his Constitutional oath, and that’s what impeachment is for.

    Further, from the standpoint of linguistics, when you write:

    This idea completely cancels out the notion that Congress can have and retain intention in what actually becomes and remains law. In the process of trying to say “the Executive can’t change the law”, you seem to have gone one step further, and seem to not be recognizing that being able to completely wipe out the existence of a law is, in fact, a change to the law… it’s a change into non-existence.

    What mischief could be had with an Executive that wields such a club? Could they not demand that every law, prior to passage, first meet with their own approval and sanction? Here, fellas, here’s a template of exactly what you CAN pass and not have me shatter it to pieces by deliberately not conforming my direction to it…

    This turns laws into monofilament crystalline structures. They will shatter and crumble at the slightest effort of the Executive, and therefore at their slightest whim.

    — you miss the very obvious fact that Congress can do precisely what it’s doing: refuse to fund the law that has been changed, or vote yet again to fund the law as it was originally intended. Or they can choose to rewrite portions of the law to constrain the executive, if such a thing needs doing, and then pass that. This, too, would be a new law, and if the President chooses not to sign it, that’s the way it goes. Congress can then override the veto or not. But the President is compelled to explain in writing his objections.

    As for the rest, any law can of course be ruled unconstitutional by the courts. That doesn’t trouble intentionalism in the slightest, but rather points to the ways some seek to disguise or circumvent their appeal to it. Thankfully, there’s a movement on to re-empower the states and take the final say away from a one vote swing on a politicized court.

  38. An old quote which is ever new with this administration and which also goes with my comment at 11:34 am.

    In 1937, Luther Gulick, an important New Dealer and leading proponent of the professionalization of public administration, advocated restructuring American government to reduce the typical law enacted by Congress to “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.”

    And indeed, the political scientist Theodore Lowi assessed the sprawling governmental apparatus built up over the subsequent four decades by saying, “Liberalism is hostile to law.” That is, liberalism promotes “policy without law” by having Congress delegate real governance, and vast discretion, to administrative agencies that go on to regulate with “a vigor that is matched only by its unpredictability.”

    The consent of the governed, expressed through elections that let the people turn unsatisfactory officials out of office, is trivialized. Tired of waiting for the progress of a maturing society to do something democratically about global warming? Fear not — there’s a tenuously democratic Plan B.

    The Environmental Protection Agency’s life-tenured civil servants have already declared that greenhouse gases are within their boundless regulatory purview, and they stand poised to overrule Congress if elected legislators decide against mandating new limits on emissions.

    What the Progressive ruling class desires is defined democracy perfected as their desires are what the common people would want if they were not mired in emotional turmoil and old non-progressive ways of thinking and living. Once they have been uplifted they too will like what the leaders are doing now.

  39. Should be “defined as democracy perfected,” above.

  40. . . . if they were not mired in emotional turmoil and old non-progressive ways of thinking and living.

    Indeed.

    We (not they) must learn to like, to favor, what we do not like and do not favor. Hence the instructive calling of the administrative state. We are to learn, to be taught, and if punishment for not behaving as we have been instructed to behave, in quiescent acceptance of our betters is necessary, as today, then so be it. Punishment we will have.

  41. That being said, an executive deliberately mis-enforcing laws in order to have them sued to be overturned can be thwarted by a Congress that passes the law again.

    That would be all well and good presuming that the only division of government that ever arises is one in which the Executive is not aided politically by at least one chamber of Congress, which is the situation we have now. In that circumstance, the ratchet of undoing laws turns only one way: the laws that the Executive dislikes are undone by the “intentionalist veto” tactic, and those opposed to such action cannot un-do that until the Executive is replaced by someone of a different political intent and the other chamber flips as well, or both chambers have to shift far enough to have both chambers re-pass whatever is undone using veto-proof majorities.

    Laws that the Executive favors, of course, do not face such a problem. They remain on the books, because the “intentionalist veto” is a tactic that can only be used by the Executive.

    Let’s say such an Executive engages in that tactic for about 4 years of a lame-duck presidency, or is willing to sacrifice himself on the bonfire of fundamentally transforming the balance of our laws on the books in their first term. Some of the American populace will utterly hate that… but others will absolutely love it, and their votes count just as much as yours (more if they are unethical enough to find a way to engage in vote fraud).

    How confident are you that such a fundamentally transformative Executive wouldn’t become the scion of FDR, lauded and championed for their “doing the right thing for the people”?

    Let’s give you that one, and say that an opposition candidate replaces them at the next term. That alone is still not enough. To replace laws that were shattered by an “intentionalist veto”, and by that action strongly tilt the balance of law in favor of a particular partisan agenda, cannot be put back into place without a wholesale political shift to the point where the opposition controls all the levers of control over both chambers of Congress and the Executive at the same time.

    That is not anything like an easy task when such destruction gives a motivated-but-unethical partisan side strong advantage. They will be deeply charged-up about the “progress” that was made by their political martyr who gave everything to accomplish the goals of their side. They will not simply give that progress back. They will be motivated (likely through fair means and foul) to ensure that at least one of the levers remains in their control.

    If that happens, they keep their newfound “balance”, ad infinitum.

    The flaw in this dismissive “Congress can just pass it again” is the assumption that it is just as easy to create a law under that regime as it is to destroy one, and that both sides are on equal footing, so a stalemate can be assumed. It’s simply not true, from what I can tell.

    And of course, sdferr is correct: an executive who is deliberately mis-enforcing the law is breaking his Constitutional oath, and that’s what impeachment is for.

    How, precisely, do you intend to successfully impeach an Executive when he has at least one of the two chambers of Congress on his side? Or if not totally on his side, at least enough on his side to prevent such an action from succeeding? Again, there is a strong asymmetry here. It is far, far easier to destroy laws using this process than it is to undo the destruction… especially when the destruction aids the political goals of a significant fraction of the population.

    What was Dark Helmet’s line? “Now you see that evil will always triumph… because good is dumb.”

    It’s all well and good to say that they are wrong. Morally, ethically, politically. Doesn’t matter if they are wrong so long as they are allowed to vote. What’s your solution for that once this Pandora’s Box opens along the lines I’ve laid out here?

    If the goal here is to see to the hastening of the destruction of this Republic, so that something “better” can be constructed out of the ashes, that’s one thing. But I honestly can’t discern the true goal or endgame of this proposal. On one hand, it seems to elevate intentionalism to the holy of holies, damn the cost or consequences. Is it your intent to pursue a course where our Republic dies, but at least we end up being true to the notions of intentionalism in the process, because nothing could possibly be more important than that?

    I honestly don’t know your intent, Jeff, but I’d like to. Or at least to have you state explicitly that you’d simply rather not reveal what your true intent in this proposal is.

    Which, if it happened, would either be as ironic as all hell or make this whole thing into some kind of massive trolling exercise.

    Sorry, man. You’re baffling me. What are the boundaries of what you’re trying to accomplish, and what is the outer limit of the consequences we are willing to accept in the process?

  42. scalable? check

  43. That would be all well and good presuming that the only division of government that ever arises is one in which the Executive is not aided politically by at least one chamber of Congress, which is the situation we have now. In that circumstance, the ratchet of undoing laws turns only one way: the laws that the Executive dislikes are undone by the “intentionalist veto” tactic, and those opposed to such action cannot un-do that until the Executive is replaced by someone of a different political intent and the other chamber flips as well, or both chambers have to shift far enough to have both chambers re-pass whatever is undone using veto-proof majorities.

    Laws that the Executive favors, of course, do not face such a problem. They remain on the books, because the “intentionalist veto” is a tactic that can only be used by the Executive.

    Intentionalist veto? No, illegal, unconstitutional unilateral rewriting/ignoring of law, gone unchecked and unpunished.

    On one hand, it seems to elevate intentionalism to the holy of holies, damn the cost or consequences.

    No, it isn’t a creed nor an ideology. It isn’t a belief of any sort. It isn’t a sacred thing. It is simply the only effective means of receiving communication and properly understanding what is being received.

    Is it your intent to pursue a course where our Republic dies, but at least we end up being true to the notions of intentionalism in the process, because nothing could possibly be more important than that?

    The Republic is dying with or without us. This is yet another attempt at resuscitation. What isn’t going to save it is pretending that things are what they’re not which is pretty much all DC does these days.

    What are the boundaries of what you’re trying to accomplish, and what is the outer limit of the consequences we are willing to accept in the process?

    This is a separate question. Important, but separate. The answer is that we’ve already accepted far more than we ought to. Thank a fucking progressive.

  44. As Jeff has said repeatedly here and elsewhere: Intentionalism just is.

  45. heh, Sen. Harry Reid says the bill is four years old — the implication being that alone is sufficient reason to fund it, whatever “it” is.

    Does that mean it has learned to speak in complete sentences already, being four years old? When does it get around to thinking ahead to its complete breakdown on account of the incoherence it has assumed as a basis these last four years?

  46. Harry Reid apologized for some of the rhetorical excesses this morning Maybe resorting to all the terrorist/hostages lingo isn’t polling well.

  47. Pablo wrote:

    Intentionalist veto? No, illegal, unconstitutional unilateral rewriting/ignoring of law, gone unchecked and unpunished.

    Perhaps my intent with the use of that phrase has been unclearly signaled. Let me attempt to clarify, in the interests of having a better mutual understanding.

    I don’t disagree in any substantive manner with the notion of intentionalism itself. Jeff has done an excellent job over the years pointing out the pernicious effects of buying into the postmodernist notion that it is intellectually sound to retroactively change the meaning of a text via “interpretation” and then act as if that new interpretation actually is the text itself. I get that and I agree completely. There’s no philosophical disagreement that I have with that. The meaning of a text, and more importantly the intent behind that meaning, properly belongs to the original author, who should properly be treated as the ultimate arbiter of what the “true meaning” and “true intent” is of any particular text.

    What we have in Jeff’s post, however, is something different. As best I can tell, Jeff is proposing changing the way the question of the constitutionality of a law is determined in this country, and in the process seems to be opening the door to a potentially staggering amount of mischief-making by those who might seek to exploit that concept to their own ends.

    The pivotal question comes down to this: In the process of seeking to fight against the deliberate misinterpretation of laws, should we place in the hands of the Executive the power to unilaterally render a properly passed and otherwise-constitutional law unconstitutional simply by the act of the Executive deliberately choosing to mis-apply it?

    When did we reach the point where the idea of allowing evil people to destroy the works of good people (by choosing to retroactively mis-use them) somehow became a good thing?!?

    When I constructed the phrase “intentionalist veto”, it was to convey precisely this mis-use of the tool that Jeff seems to be proposing for eliminating Obamacare. I’m in favor of the goal, and the previously referenced lawsuit seems like a good way to go about it, by putting the focus and blame precisely where it belongs: on the Executive for mis-applying the law as written rather than enforcing it.

    Jeff’s proposal of opening up a novel (as best I can tell) approach to the interaction between the constitutionality of a law and the inappropriate actions of an Executive with respect to that law seems positively fraught with possibilities for mis-use of the principle in the future, were it to be accepted as settled case law.

    That kind of abuse of the new tool used in the process of ridding us of Obamacare is what I call the “intentionalist veto”, not the original use that Jeff is proposing. The “intentionalist veto” possibility is what makes the cure quite possibly much, much worse than the disease we might seek to eliminate. I call it that because the conventional veto is a tool of the Executive, and this new tool in the legislative/judicial interaction would empower a whole new set of possibilities, that could only be used by the Executive.

    Part of what makes it so dangerous is the asymmetries in time that the use causes. Standard vetoes can be overridden proximately in time to the veto itself, provided that there is sufficient political will to do so. They are hard to pull off generally, but they have the advantage of being able to be deployed within hours of a veto, as a check and balance.

    With this new potential abuse, there is nothing legally structured which would allow a legislature, no matter how unified in purpose to immediately override that Executive action of rendering a law unconstitutional for entirely partisan, political purposes. It therefore inverts the current relationship between those branches, and gives the Executive a new “nuclear option” where the potential remedy itself (impeachment) does not serve to undo the use of that option. The damage, as with nuclear weapons, might linger for a long, long time before it can be remediated.

    That might make the whole approach into a deeply Pyrrhic victory if it were used to undo Obamacare. The future damage enabled in the process of trying to rid ourselves of this onerous piece of legislation that was rammed through in the most transparently mendacious of fashions seems almost incalculably large.

    I embrace the philosophical rightness of intentionalism. I just don’t see the net benefit of using it to shift the courts even more into an Executive tool with which to enforce his or her political desires.

  48. The Republic is dying with or without us. This is yet another attempt at resuscitation. What isn’t going to save it is pretending that things are what they’re not which is pretty much all DC does these days.

    It should be clear by now that I’m not an advocate of the status quo, or of doing nothing at all.

    That should not imply, however, that every possible action which doesn’t comply with those is equally good, or equally bad. This idea seems fraught with far more possibilities for bad outcomes down the road if it were accepted into the judicial toolbox of determinations of constitutionality of laws.

    If a patient is dying, applying voltage directly from high-tension long-distance power transmission lines might theoretically help. I’d think the odds would be much more likely to make things irretrievably worse than it would to make it better.

  49. This is a separate question. Important, but separate. The answer is that we’ve already accepted far more than we ought to. Thank a fucking progressive.

    I fully agree with the sentiment. I just don’t think the sentiment means that we should neglect the potential downsides of whatever might be proposed as solutions.

  50. This stuff is difficult to be sure, VekTor. And it seems as though we understand the proposition at something like anti-polar ends, for I don’t believe the idea is to enable the misinterpretation or misapplication of constitutional or legal intent, but to recognize extant misinterpretation and misapplication as more or less the heretofore unrecognized status quo ante, for some indefinite past of many years standing, and therefore, by means of such recognition to remove, at least somewhat and to whatever extent possible, the continuation of that fraud.

    It seems to me that a couple of years ago Jeff and others have even gone so far as to link a Madison letter which itself made explicit the damage that could be done to the intentions of the Constitutional frame and hence to governance in America by precisely this sort of intentional misinterpretation or misapplication, anticipating and warning his interlocutor (and us) of the possibility years before such acts became commonplace.

  51. Associated with that problem, it occurs to me a little belatedly, is this just criticism of the framers’ efforts at Philadelphia: their failure to apprehend the great danger posed by the Judiciary scheme they created to the very Constitution under its ministration and interpretation, a failure nowadays recognized on many hands through long experience of ghastly bad decisions.

    They thought the Judiciary the least dangerous of the three branches, alas. Little did they consider that as a thought-thing, and not merely a physical power thing, the Constitution would be most massively endangered by the narrow thought-products of the high courts.

  52. I’m wondering if there’s a way to modify the proposal to make it honor the ideas inherent in intentionalism, without opening this sort of Pandora’s Box.

    Where I see things going pear-shaped is with the notion of the invalidation of the constitutionality of the law that was actually passed. That’s where the mischief arises. If there’s a way to systematically thwart the desires of a malignant Executive without hamstringing the legislative process as a side-effect, I could see that working.

    I don’t see a mechanism for that other than the sorts of lawsuits against the Executive that we linked earlier. Ideally, there would be some manner to force “specific performance” on to the Executive via the judicial system which actually had teeth (and non-abusable penalties) behind it.

    Part of the dysfunction that has led us here is the notion of a corrupt Executive that is in league with a sympathetic/corrupt Justice Department, combined with at least one enabling chamber of the Congress. That’s a particularly nasty combination, but I believe it’s precisely what we face today.

    If there were some law-enforcement arm of the judiciary which could act to counter a corrupt Justice Department (without having the cooperation of both chambers of Congress), we might have a hook into the pathway to unravel this sort of monstrous circumstance.

    Nothing of that form leaps to mind as already existing… I’m all ears if someone has suggestions.

    Of course, as you point out, the judiciary has its own host of problems.

  53. OK, this might be the lynch-pin right here:

    The standing would be to strike down the law precisely because it IS NOT the original law, and so couldn’t be funded by Congress, it having never been passed in its current form.

    In keeping with the precepts of intentionalism, could the new text be stricken as unconstitutional, while leaving the original text prior to the mis-applications of the Executive intact?

    That would seem to close the “intentionalism veto” loophole and be in perfect keeping with the Judicial Watch lawsuit. The intentionalism argument becomes a supporting argument for the JW lawsuit in that circumstance.

    In effect, that says that the only actions that can be taken with respect to the law, its enforcement, and the underlying provisions must necessarily be enforced by the Executive as written, rather than as he wish it had been written.

    The big problem becomes: what is the enforcement mechanism if the Executive just says “no” to the courts, with the Justice Department in his back pocket? They can strike the “new text” and say that FUNDING can only be applied to the original text as written, but what is the enforcement mechanism against Congress if both chambers don’t agree with that assessment?

    So striking the ability to fund an original text if the Executive chooses to deviate from it would seem to open up most of the same possibilities for mischief as simply declaring the original text constitutional.

    That’s my real hang-up in all of this, Jeff. This seems tantamount to a “whipping boy” enforcement mechanism, where if an Executive deviates from the original text and thereby creates a new text, it is the original text which suffers the punishment, not the new text. The sins of the revision are visited on the original.

    There is some short-term political utility in that for the case where the Executive mostly likes the law in question, as with Obamacare. But it goes totally sideways if the principle is later abused to take out laws that the Executive hates.

  54. Bah. End of third-to-last paragraph should read “unconstitutional”, not “constitutional”.

  55. The Progressive left wrote the law. They wrote it intending for it to be re-written. They wanted it to be changed by the Executive branch. They purposefully wrote a “living” law. Obama by rewriting it is not overriding the legislative intent he is following it.

    Likewise he is not breaking the law but administrating it exactly as it was intended to be administered. The tyranny was in the intent of the legislature from the beginning.

    They passed something which was not a law because it can’t be implemented by “rule of law” but can only be done by “rule of man.” This “rule of man,” elite progressive man that is, they see as a higher form of democracy, a meta-democracy which would be the true democratic system of governance once the “demos” awaken from their dream state where they wander, driven to and fro by emotions not reason.

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