Fred Schwarz on Conservative and Liberal Views of the Constitution: ‘Rules vs Tools’

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“Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect.”

Fred Schwarz writes:

…Progressives (or technocrats) act as if the Constitution had a hidden clause: “The purpose of this document is to promote equality and fairness, and every part of it must be interpreted in accordance with that goal.” We’ve all heard the story about the time Learned Hand, after lunch with Oliver Wendell Holmes, said in parting, “Do justice, sir,” to which Holmes shook his head and replied, “My job is to apply the law.” This story would bewilder a modern progressive, to whom those are just two slightly different ways of saying, “Enact progressive social policy.

And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.”

I wrote in a book review once that the basic distinction between Right and Left when it comes to the Constitution is “rules vs. tools”: Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect. And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.

[Read the full text here, at National Review Online]

It’s not so much a matter of ends justifying means as of ends creating means: If a given interpretation will lead to “social justice,” that in itself makes the interpretation correct. This principle turns the 14th Amendment into a Swiss Army knife and the Commerce Clause into a roll of duct tape.  Read the rest of this entry »


George F. Will: On Obamacare, John Roberts helps Overthrow the Constitution

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George F. Will writes: Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.

“Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate.”

The court says the ACA’s stipulation that subsidies are to be administered by the IRS using exchanges “established by the State” should not be construed to mean what it says. Otherwise the law will not reach as far as it will if federal exchanges can administer subsidies in states that choose not to establish exchanges. The ACA’s legislative history, however, demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.

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“The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.”

The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.

[Read the full text here, at The Washington Post]

The court’s decision flowed from many decisions by which the judiciary has written rules that favor the government in cases of statutory construction. The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scaliadissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.

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” The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.”

Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting.” That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating.”

Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts invents a corollary to “Chevron deference.”

Named for a 1984 case, Chevron deference has become central to the way today’s regulatory state functions. It says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. Read the rest of this entry »


Scalia: ‘Words No Longer Have Meaning if an Exchange That is Not Established by a State is ‘Established by the State’

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Did the chief justice mean what he said? 

James Taranto writes: “It is not our job to protect the people from the consequences of their political choices,” Chief Justice John Roberts observed three years ago in National Federation of Independent Business v. Sebelius, the case that is usually described—with a good deal of imprecision—as having “upheld” ObamaCare.

Did the chief justice mean what he said? Today the court delivered another ObamaCare ruling, this time entirely in the administration’s favor and by a vote of 6-3. Unlike in NFIB, the majority in King v. Burwell spoke with a single voice, Roberts’s. So did the dissenters, that of Justice Antonin Scalia.

As Scalia sums it up: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd.” The practical consequence is that despite the limiting language, tax subsidies will continue to flow to people who buy medical-insurance policies in the majority of states, which have not established exchanges.

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BONUS: GOP Already Fundraising on SCOTUS Defeat

The justices went further in the administration’s favor than the Fourth U.S. Circuit Court of Appeals, whose judgment they upheld. As Roberts explains (citations omitted here and in subsequent quotes): “The Fourth Circuit viewed the Act as ‘ambiguous and subject to at least two different interpretations.’ The [circuit] court therefore deferred to the IRS’s interpretation”—a doctrine known as Chevron deference.

[Read the full text here, at WSJ]

In a similar case called Halbig v. Burwell, the U.S. Circuit Court of Appeals for the District of Columbia had ruled that the statute was not ambiguous—that the provision limiting subsidies to policies purchased through “an Exchange established by the State” did in fact limit subsidies to policies purchased through “an Exchange established by the State.” As Scalia observes:

You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. . . . Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” Read the rest of this entry »