A Nation under Laws or a Nation under Ideology?

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It seems the fate of the Nation may come down to who can read a single declarative sentence and understand what it was actually meant to say. Left or right, that still is one key ingredient of civilization.

Yesterday, in Halbig v Burwell, the DC Appeals Court ruled Obamacare

“…does not authorize the I.R.S. to provide tax credits for insurance purchased on federal exchanges”. The law, it said, “plainly makes subsidies available only on exchanges established by states.” (Bold italics mine)

In just a day I’ve read all sorts of arguments ranging from the politics of this decision, to-out-and out divination of intent, highlighted by Josh Ernest’s final argument for divination yesterday, when he said,

“You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace. I think that is a pretty clear intent of the congressional law.”

Well, actually, without the black art of divination, this isn’t so. So, short of chicken bones and incantations, I’ve still read nothing disputing the clear language of the law.

If Chief Justice John Roberts were a college professor, he could send a letter to every member sitting on the federal bench, I think there are 857, and ask them to answer one single question, which is:

“What is the literal meaning of the language of this statute that authorizes the IRS to provide tax subsidies?”

In this way we could get some idea just what the law schools have been putting out these past forty years, for from the simultaneous decision handed down by Virginia’s 4th Circuit Court of Appeals the same day, taking the opposite position as the DC Court, the law schools seem to be doing no better than the nation’s business schools and journalism schools, where everything is justified by the bottom line, which is just another way of restating Lenin’s old axiom that the “ends justify the means.” And judges are perilously close to being lumped in with Women’s Studies or Transgender study programs for their lack of fealty to the  inerrancy of facts.

An Ineptocracy guided by an Idiocracy?

We’ve understood and complained about the “ineptocracy” in our government for many years, especially under this Obama administration and its co-conspirators in Congress. Obamacare is its masterpiece, although we are seeing even more examples arise each week. But to see a genuine idiocracy arise among our legal guardians to protect the Ineptocracy, who are supposed to keep this inept government from spilling over it banks and flooding the countryside, instead pretending all the levees are holding, isn’t just frightening, it’s survival-endangering.

I have my ideology, and the other guy has his ideology. No problem. I can fight any ideology straight up, if honestly debated (I know honest leftists, though none American) just as I can defend my own turf. Neither of us has to lie to state our case. But in order to make their square ideological peg fit into the round hole of reality, the modern American Left has to lie. This is nothing new.

Read the Halbig case cited above. It is a tedious read, and an entire section is dedicated to a standing issue that does not pertain to the central question of the ruling. But you will see that the court factually, not ideologically, but factually, answered every question raised by the ideological Left about its decision, not only proving that the language is as it says it is, but also, as to intent, that the drafters actually intended the language to read that way, on their then-believed likelihood that states would rush forward to form state exchanges if they denied them tax credits in the federal exchanges. It was not a misprint. Nor was it an either-or.

It was a carrot. Only the states didn’t rush in as anticipated. Just 14 signed up for the state exchanges, not 40. So through the IRS the government attempted to give the other states the subsidies anyway, which have far reaching ramifications on other plans in the future, which the court also discusses in detail.

The court did not use “crap shoot” anywhere in this decision, but it was clearly implied that’s what the Obama administration made with the unambiguous “ambiguous’ language they had employed to try to have it both ways. And it is normally easily remedied, the proper remedy for this failed toss of the dice simply would be for Congress to go back and change the language. But wait, not one single Republican voted for Obamacare in 2009, and now they control the House because of popular dissatisfaction with it.

The other side argues “intent” as did the Virginia Court, only, intent is usually found in the legislative history of an act, only there isn’t any with Obamacare. For instance, the Federalist Papers were part of the “legislative history” of the Constitution (the anti-federalist papers published. not as widely read, the other part), but if you will recall, Obamacare had to  be “passed before we could know what was in it”, (a truly memorable comment that will cling to Nancy Pelosi like leg-irons all the way to the grave.) so there is no real legislative history as to what Congress actually “intended.” So the other district court judges have had to resort to divination, or clairvoyance, to presume that Congress meant “that’, when Congress clearly said “this.”

I can understand this reliance on clairvoyance if found in a 21 year old Occupy kid, with a degree in underwater-basket weaving. for even compared to an 8th grade drop-out in 1964, there is so much he doesn’t know or understand about anything, he has to make stuff up as he goes along to explain the universe as it changes around him daily.  But lawyers? Lawyers who have risen to the apex of their professions?

This current batch of cases will not be presented to the American public, or to the Supreme Court, as a constitutional issue, but one of legal interpretation, and therefore justifiably political. But in many respects it is a constitutional case of the highest moment, for it asks the simple question as to whether the legal community, from the pup lawyer fresh out of law school up to the highest judge in the land, purportedly can 1) read a single simple declarative sentence in a statute and 2) understand it, then connect that understanding to a second dot, by accepting that this is a law, and not the wife’s grocery list, and then connect that third dot to acknowledge that judges cannot rewrite law by throwing a handful of chicken bones insides a circle drawn in the dirt to divine what the law (or the wife) really meant..

….and still declare themselves to be a part of a “nation of laws.”

This risk, when properly framed, even the wiser leftist may not want to come out of this looking like a pup journalist from MSNBC. Many judges will back off and wait for another day and a better case to express their ideology, within the law, rather than outside it. The pup legal draftsmen over at the DNC will have to wait for another day.
 For once, vanity may work to our benefit.

(The t-shirt, shown, can be had on eBay or Amazon, for as little as 9.00),

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bobmontgomery
July 23, 2014 6:21 pm

Though lawyers are not the only profession beclowning themselves these days, their antics are, as you indicate, most immediately consequential. I continue to maintain that the runaway democracy of the 857 federal judges you mention, where if enough benches issue similar rulings, it becomes some sort of precedent, or law by proxy, is not what the founders intended. Occasionally a venue can be found as a refuge for conservatives seeking relief or redress, but more often than not, a federal judge in Peoria fancies himself an autocrat every bit as much as Obama does And, as in the case of… Read more »

Lady Penguin
Admin
July 24, 2014 4:41 am

When is a law not a law? When the Democrats are in power. When do words “lose” their definitions? When the Democrats are in power. When are the “checks and balances” set forth for the three branches of government made irrelvant? When the Democrats are in power. I assume that if the exact wording of the law is upheld, ie. Obama loses, it would be breaking the law if he issues an executive order or tells the IRS to issue said regulations that would continue these subsidized, non-state-exchange subsidies? Something to do with the separation of powers – Congress makes… Read more »