The historians will long be fighting over the legislative legacy of the 111th Congress. As to its legal legacy, the only real question is whether this just-finished Democratic Congress was the most unserious in decades, or the most unserious in history.
That much is clear from the recent ObamaCare court proceedings. Federal Judge Henry Hudson, responding to a lawsuit by the state of Virginia, last week struck down the core of the law, the individual mandate. His decision came the same week that a coalition of 20 states presented oral arguments against the health law in front of Florida federal Judge Roger Vinson. In October, Judge Vinson ruled against the Obama Justice Department's motion to dismiss the states' lawsuit.
The law professors and think-tankers and media folk who initially ridiculed these lawsuits have now had to dream up sinister reasons for why they are succeeding. Judges Hudson and Vinson, we are told, were both appointed by Republicans and obviously can't be trusted to fairly interpret the law. Some commentators have gone further, suggesting that we are witnessing a cabal of right-wing activists, lawyers and judges conspiring to kill not just ObamaCare, but the entire New Deal. If only.
What the observers seem not to have done is read the briefs, arguments or rulings. Had they done so, they'd see a far simpler explanation for what's going on: Congress earlier this year punched through audacious yet unvetted health legislation, a slapdash political product that is now proving to be an historic embarrassment in its legal shoddiness. The Justice Department is in fact having to play games to defend it, which has only further provoked the courts.
And really, is that such a surprise? The Patient Protection and Affordable Care Act is one of the bigger, more complex pieces of legislation in U.S. history. Yet Democrats never gave it the respect it deserved.
Look at any other consequential piece of legislation, and the record is brimming with sober congressional investigations into its legal merits and ramifications. ObamaCare? It was a largely unread, 2,700-page fiend—crafted in secret, fed on deal-making, birthed on late-night votes. The Senate and House judiciary committees didn't hold hearings. The record is bereft of letters from congressional chairmen requesting Justice Department legal analyses of the bill. Senate Finance Chairman Max Baucus actually ruled out of order an amendment that would have required expedited judicial review of the individual mandate. Asked about the bill's constitutionality, House Speaker Nancy Pelosi's only retort was: "Are you serious?"
The result is a bill that is "in its design, the most profoundly unconstitutional statute in American history; in its execution, one of the most incompetent ones," says David Rivkin, the lawyer who represents the 20 state plaintiffs in the Florida suit. The best example is the individual mandate, the requirement that all Americans buy insurance or pay a penalty.
Democrats' first drafts of ObamaCare all decisively called this penalty a "tax." Legally, that made sense; few dispute Congress's authority to tax. But as the unpopularity of the bill grew, fewer Democrats wanted to vote for a "tax," and President Obama didn't want to own one.
So Democrats went to plan B. That was to make up an entirely new legal theory—to wit, that the federal government is allowed, under the Commerce Clause, to penalize Americans who do not take part in a specific economic activity (buying insurance).
Put another way, in order to avoid the political inconvenience of a "tax," Democrats based the very core of their bill on a new and untested legal premise—one that is a far bigger affront to the Constitution than New Deal legislation. That's why Judge Hudson struck it down. And since Congress adopted this theory sloppily, in response to political pressure, it has left a record that is killing the Justice Department in court.
Knowing how audacious the commerce-clause theory is, Justice has been trying to argue that the penalty is, in fact . . . a tax. This has only annoyed Judge Vinson, who is well aware of the history, and in fact rapped the Justice Department for the bait-and-switch.
"Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing," Judge Vinson wrote in October, "after which the defenders of that legislation take an 'Alice-in-Wonderland' tack and argue in court that Congress really meant something else entirely." Ouch.
And yet the Justice Department has continued to put forward wild theories in court—about the Commerce Clause, about the Necessary and Proper Clause—that have no basis in the statutory language of ObamaCare. And it is now playing games with the appeal of Judge Hudson's ruling, arguing against having it go straight to the Supreme Court, where the nation could get some quick clarity. The administration believes its best shot is to drag out the litigation, and hope that time pressures the courts to leave the law alone.
But what else can the Justice Department do? It's stuck defending a steaming pile of a statute. This is the 111th Congress's legacy, one that will last long after its 535 members finish their term.
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