Piling on the Constitutional Corpse

Here's Forbes's anatomy of a major ObamaCare decision (Halbig v. Burwell), due within days from the U.S. Court of Appeals for the District of Columbia.

One can only wonder how (mirabile visu) the second highest court in the land will now justify utterly disregarding the express provisions of the Patient Protection and Affordable Care Act itself in order to permit the Internal Revenue Service to continue implementing what amounts to nothing more than the President's imposition of an illegal tax on the residents of 36 states – altogether without legislative authority of any sort (indeed, in express contravention of the controlling legislative authority).  Doing otherwise would, however, be virtually the judicial equivalent of lèse-majesté.

[Editor's note (07-23-14): A previous version of this piece block-quoted the above paragraph.  The error has been corrected.]

Perhaps the Appeals Court will simply rewrite the act to achieve this Obama-imposed tax on the majority of the Union's states – as the highest court in the land (courtesy John Roberts) has long since already done in having rewritten (in NFIB v. Sebelius) the act to transform its unconstitutional legislative "penalty" into a constitutional judicial "tax."

Manifestly, neither the Executive Branch nor the Judicial Branch has any constitutional authority to legislate.  Yet the president has done so in extending the ObamaCare "tax" to 36 states that elected not to establish state health insurance exchanges.  Before that, the Judicial Branch had done so in transforming a legislative "penalty" into a judicial "tax."

If the highest court in the land can unconstitutionally legislate, why can't the second-highest court in the land also unconstitutionally legislate?  And if our present president can unconstitutionally legislate about ObamaCare, why can't future presidents also unconstitutionally legislate about whatever it pleases them to?

Perhaps, at this late date in the Constitution's decline, these questions are no longer even worth asking.  Because the only question ever really worth having asked in this regard was always this one: if one Congress can – by the invocation of "penumbrae" and "emanations" (never mind Commerce and General Welfare clauses) – unconstitutionally legislate, why can't any future Congress also unconstitutionally legislate whatever way it pleases?  This is the fundamental constitutional question, which has gone unanswered for most of a century now.  That's why there's an ObamaCare even available with which the Judicial and Executive Branches can now unconstitutionally toy.  The proximate problem has always been that the Legislative Branch itself has been unconstitutionally legislating for the better part of a century.  And, if the Legislative Branch can itself unconstitutionally legislate, why can't the Judicial and Executive Branches also unconstitutionally legislate?  Hell, why can't any mob with sufficient blood in its eye unconstitutionally legislate?  There's either the rule of law or there's the rule of John Roberts, the rule of Barack Obama, the rule of Harry Reid, the rule of Nancy Peolsi, the rule of John Boehner, and the rule of men in the street with weapons.  Who's going to stop anyone else if they're all playing the same Götterdämmerung game together?

And of course that's what the three branches of the federal government have all been doing, with increasing brazenness, since at least the New Deal (if not, in fact, since the Civil War).  That's why the nation today has a $17.5-trillion national debt that it will never repay.  That's why the nation today has a $200-trillion future unfunded liability that it will never fund.  That's why the nation today has an intrusive, oppressive, and voracious federal government that steals the value of its citizens' labor and coercively parasitizes their liberty and their prosperity.

ObamaCare was never about the nation's health care.  The nation had the world's best health care system before ObamaCare – one in which everyone in the nation (from illegal alien to career welfare recipient) could, under existing federal law, obtain the basic health care that he had not earned and for which he had not paid and would not pay.  Instead, ObamaCare was always just the icing on the statist cake, étatism's dance round the Constitution's coffin.  That's why it was Obama's highest legislative priority.  It's the coup de grâce, the capstone on Obama's fundamental transformation of America.

Just a few days after the Christmas before last, Professor Louis Michael Seidman (Georgetown University's Carmack Waterhouse professor of constitutional law) advocated, in the New York Times, that we just give up on "our obsession" with the Constitution – a document whose provisions he characterized as "archaic, idiosyncratic and downright evil" and whose provenance he characterized as "written by a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, [and] acted illegally under existing law[.]"

Neither Seidman nor his professorial brethren at law schools from Harvard to Berkeley need have bothered worrying themselves much about this over the 2012 Christmas holidays, because the Legislative Branch had already "given up on the Constitution" when the U.S. Congress, over two years earlier, passed a 2,000-page legislative Frankenstein's monster so unconstitutional as not to have been even risibly consistent with the rule of law.  And no legislator would have known it even if this monstrosity had been consistent with the rule of law because no legislator, according to Nancy Pelosi, had ever even read it before having been required to vote on it.   

Everything since then has just been the Judicial Branch and the Executive Branch piling on the constitutional corpse in America's governing danse macabre.

NB: Between the time of this article's composition and its publication, a split decision from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit actually nixed the Internal Revenue Service's rules applying the ObamaCare subsidies to the federal health care exchanges.  Time for some more Obama appointments to the D.C. bench?  On the same day, however, a different U.S. Court of Appeals (for the Fourth Circuit in Richmond) OKed the same rules applying the same subsidies.  This is getting really weird.  Anyway, Obama has two more potential times at bat with this issue: first, the Court of Appeals again (this time en banc), and second, the Supreme Court itself (the latter may now be more likely with yesterday's conflicting Federal appeals court decisions).  So is John Roberts looking down the road at finding himself hoisted with his own petard?

Here's Forbes's anatomy of a major ObamaCare decision (Halbig v. Burwell), due within days from the U.S. Court of Appeals for the District of Columbia.

One can only wonder how (mirabile visu) the second highest court in the land will now justify utterly disregarding the express provisions of the Patient Protection and Affordable Care Act itself in order to permit the Internal Revenue Service to continue implementing what amounts to nothing more than the President's imposition of an illegal tax on the residents of 36 states – altogether without legislative authority of any sort (indeed, in express contravention of the controlling legislative authority).  Doing otherwise would, however, be virtually the judicial equivalent of lèse-majesté.

[Editor's note (07-23-14): A previous version of this piece block-quoted the above paragraph.  The error has been corrected.]

Perhaps the Appeals Court will simply rewrite the act to achieve this Obama-imposed tax on the majority of the Union's states – as the highest court in the land (courtesy John Roberts) has long since already done in having rewritten (in NFIB v. Sebelius) the act to transform its unconstitutional legislative "penalty" into a constitutional judicial "tax."

Manifestly, neither the Executive Branch nor the Judicial Branch has any constitutional authority to legislate.  Yet the president has done so in extending the ObamaCare "tax" to 36 states that elected not to establish state health insurance exchanges.  Before that, the Judicial Branch had done so in transforming a legislative "penalty" into a judicial "tax."

If the highest court in the land can unconstitutionally legislate, why can't the second-highest court in the land also unconstitutionally legislate?  And if our present president can unconstitutionally legislate about ObamaCare, why can't future presidents also unconstitutionally legislate about whatever it pleases them to?

Perhaps, at this late date in the Constitution's decline, these questions are no longer even worth asking.  Because the only question ever really worth having asked in this regard was always this one: if one Congress can – by the invocation of "penumbrae" and "emanations" (never mind Commerce and General Welfare clauses) – unconstitutionally legislate, why can't any future Congress also unconstitutionally legislate whatever way it pleases?  This is the fundamental constitutional question, which has gone unanswered for most of a century now.  That's why there's an ObamaCare even available with which the Judicial and Executive Branches can now unconstitutionally toy.  The proximate problem has always been that the Legislative Branch itself has been unconstitutionally legislating for the better part of a century.  And, if the Legislative Branch can itself unconstitutionally legislate, why can't the Judicial and Executive Branches also unconstitutionally legislate?  Hell, why can't any mob with sufficient blood in its eye unconstitutionally legislate?  There's either the rule of law or there's the rule of John Roberts, the rule of Barack Obama, the rule of Harry Reid, the rule of Nancy Peolsi, the rule of John Boehner, and the rule of men in the street with weapons.  Who's going to stop anyone else if they're all playing the same Götterdämmerung game together?

And of course that's what the three branches of the federal government have all been doing, with increasing brazenness, since at least the New Deal (if not, in fact, since the Civil War).  That's why the nation today has a $17.5-trillion national debt that it will never repay.  That's why the nation today has a $200-trillion future unfunded liability that it will never fund.  That's why the nation today has an intrusive, oppressive, and voracious federal government that steals the value of its citizens' labor and coercively parasitizes their liberty and their prosperity.

ObamaCare was never about the nation's health care.  The nation had the world's best health care system before ObamaCare – one in which everyone in the nation (from illegal alien to career welfare recipient) could, under existing federal law, obtain the basic health care that he had not earned and for which he had not paid and would not pay.  Instead, ObamaCare was always just the icing on the statist cake, étatism's dance round the Constitution's coffin.  That's why it was Obama's highest legislative priority.  It's the coup de grâce, the capstone on Obama's fundamental transformation of America.

Just a few days after the Christmas before last, Professor Louis Michael Seidman (Georgetown University's Carmack Waterhouse professor of constitutional law) advocated, in the New York Times, that we just give up on "our obsession" with the Constitution – a document whose provisions he characterized as "archaic, idiosyncratic and downright evil" and whose provenance he characterized as "written by a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, [and] acted illegally under existing law[.]"

Neither Seidman nor his professorial brethren at law schools from Harvard to Berkeley need have bothered worrying themselves much about this over the 2012 Christmas holidays, because the Legislative Branch had already "given up on the Constitution" when the U.S. Congress, over two years earlier, passed a 2,000-page legislative Frankenstein's monster so unconstitutional as not to have been even risibly consistent with the rule of law.  And no legislator would have known it even if this monstrosity had been consistent with the rule of law because no legislator, according to Nancy Pelosi, had ever even read it before having been required to vote on it.   

Everything since then has just been the Judicial Branch and the Executive Branch piling on the constitutional corpse in America's governing danse macabre.

NB: Between the time of this article's composition and its publication, a split decision from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit actually nixed the Internal Revenue Service's rules applying the ObamaCare subsidies to the federal health care exchanges.  Time for some more Obama appointments to the D.C. bench?  On the same day, however, a different U.S. Court of Appeals (for the Fourth Circuit in Richmond) OKed the same rules applying the same subsidies.  This is getting really weird.  Anyway, Obama has two more potential times at bat with this issue: first, the Court of Appeals again (this time en banc), and second, the Supreme Court itself (the latter may now be more likely with yesterday's conflicting Federal appeals court decisions).  So is John Roberts looking down the road at finding himself hoisted with his own petard?