Con Law (40 page)

‘Because the Commerce Clause authorizes Congress to
regulate
commerce, not to
create
commerce. Congress can’t compel citizens to engage in commerce in order to then regulate that commerce.’

‘Congress can regulate what we do, but they can’t regulate what we don’t do.’

‘Exactly. As Scalia wrote, saying the Commerce Clause allows the government to regulate the failure to act “is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activities.”’

‘And the individual mandate orders citizens to act, to engage in commerce, to buy a product, in this case health insurance.’

‘Yes. Congress said, we’ve decided it’s a good thing for all Americans to have health insurance, so we order all Americans to buy health insurance, and any American who refuses to buy health insurance will suffer a monetary penalty. We are forced to act at the direction of the government.’

‘And what did Chief Justice Roberts have to say about that?’

‘He said that was a bit much, even under the Commerce Clause. A government order to purchase insurance, enforced with a monetary penalty, is unconstitutional.’

‘Who agreed with him?’

‘The other four conservative justices. The four liberals thought that was an okay thing for Congress to do. They said Congress was just regulating our future commercial activity today, what they called “regulating in advance.” But no one ever accused them of higher intelligence.’

Mr. Stanton shared a fist-bump with his buddies on the back row.

‘So, on a five-to-four vote—five conservative justices to four liberal justices—the Court invalidated the
individual mandate?’

‘Yes.’

‘And thus Obamacare?’

‘Uh … no.’

‘But you just said the Court invalidated the individual mandate as an unconstitutional exercise of Congress’s power under the Commerce Clause.’

‘That’s correct, but the Court then validated the individual mandate under the Taxing Clause.’

‘Please explain, Mr. Stanton.’

‘The government made a backup argument, that the individual mandate could instead be upheld as a tax, and there’s almost nothing or no one Congress can’t tax.’

‘What tax? The nine-hundred-page Obamacare law never once mentions the word “tax.” It provides for a penalty for refusal to buy insurance, not a tax.’

‘The government lawyers made it up after the fact. They realized that they might lose on the Commerce Clause argument, so they said, “Oh, that ‘penalty’ is really a ‘tax,’” because the Taxing Clause gives Congress essentially unlimited power to lay and collect taxes for just about any purpose—why not to finance healthcare?’

‘But Roberts and the four conservative justices saw through that ploy, didn’t they, and disagreed with that contention?’

‘They did. He didn’t. Roberts joined with the four liberal justices to uphold the individual mandate as a tax and not a penalty.’

‘Even though the law says it’s a penalty and not a tax? Even though the Court had never before held that a penalty under a law was also a tax?’

‘I’m afraid so, Professor.’

‘So Chief Justice Roberts was the deciding vote to hold the individual mandate unconstitutional under the Commerce Clause and also to hold the individual mandate constitutional under the Taxing Clause?’

‘Yep.’

‘So the individual mandate is the
law in America?’

‘Yep.’

‘And Obamacare?’

‘Yep.’

Mr. Stanton leaned down then held up a T-shirt that read:
OBAMACARE: YOU CAN’T CURE STUPID
.

The class shared a laugh.

‘Thank you for the levity, Mr. Stanton.’

‘My pleasure, Professor.’

‘But, Mr. Stanton, what’s the difference between A, Congress ordering a citizen to buy health insurance and enforcing that with a monetary penalty, which the Court said is unconstitutional, and B, Congress taxing a citizen for refusing to buy health insurance, which the Court said was constitutional?’

‘Nothing. It’s exactly the same result. Congress is using its power to force citizens to do something they don’t want to do and taking your money if you refuse to do it. Roberts engaged in constitutional sophistry.’

‘Why would he do that?’

‘Because Roberts wants the
New York Times
to like him. The liberal media destroyed the legal reputations of conservative justices like Rehnquist and Scalia, and Roberts doesn’t want to suffer the same fate. Problem is, he doesn’t understand that the liberals might like him now since he upheld the biggest government takeover of American life in history, but the first time he goes against them, they’ll crucify him. That’s what they do. So he cratered. He betrayed the Constitution.’

Ms. Garza stood and faced Mr. Stanton. The debate was on.

‘Roberts grew a conscience, that’s why he voted with the liberals.’

‘Funny how it’s always a conservative justice who crosses over to vote with the liberals, but no liberal justice ever crosses over to vote with the conservatives. Why is that?’

‘Because we’re always right.’

‘And therein lies the problem: self-righteous liberals in America who want the government to make an unfair life fair, unsuccessful people successful, stupid people
smart, and everyone ride a bike.’

‘Ride this.’

Ms. Garza stuck her middle finger in the air at Mr. Stanton. He turned his eyes to Book and his hands up.

‘Holster that finger, Ms. Garza. And please sit down. We’re here to discuss con law, not social policy.’

‘Con law is social policy.’

‘Yeah,’ Mr. Stanton said, ‘because liberal justices believe government should control our economic lives.’

‘And conservative white male justices believe government should control our personal lives,’ Ms. Garza said.

‘I don’t want some uneducated minimum-wage government bureaucrat who wasn’t smart enough to get a job in the private sector deciding whether my children get life-saving treatments.’

‘You’d rather have a greedy profit-driven insurance company deciding?’

‘Yes. You know why, Ms. Garza?’

‘Because your daddy owns stock in those insurance companies?’

‘Besides that?’

‘No.’

‘Sovereign immunity.’

‘What?’

‘If the insurance company denies treatment and my son dies, I can sue them for a billion dollars. That keeps them honest. If a government bureaucrat denies treatment and my son dies, I can’t sue the federal government for a penny. It’s called sovereign immunity.’

Ms. Garza shrugged. ‘That’s the price we pay to solve social problems.’

‘Name one social problem the federal government has ever solved, Ms. Garza. Education? Drugs? Energy? Poverty? Now they’re going to
solve
our healthcare.’

‘The forty million poor people who can’t afford health insurance deserve medical
care, too.’

‘They’ve got free healthcare. It’s called the public hospital. And how many of those so-called “poor” people have tricked-out trucks with thousand-dollar wheels and iPhones and tickets to every pro football game, but they just can’t afford healthcare? Those “poor” people know they can still get free medical care, so why pay for it? Why not suck off everyone else? We don’t have forty million people who can’t afford healthcare insurance. We have ten million who can’t and thirty million who won’t. Who’d rather let the rest of us pay their way.’

Mr. Stanton leaned down again and held up another T-shirt that read:
OBAMA-MART: WHEN EVERYTHING IS FREE BECAUSE THE GUY BEHIND YOU PAYS
.

The class enjoyed the T-shirt.

‘Mr. Stanton, did you go shopping this weekend?’

‘Yep. In honor of our last class with Ms. Garza and her T-shirts.’

‘Ah.’

Ms. Garza was not yet ready to surrender.

‘We do too have forty million people who can’t afford health insurance—they said so on the evening news.’

Mr. Stanton laughed. ‘You shouldn’t be so gullible, Ms. Garza. The poverty industry puts out that misinformation so the government will keep sending trillions their way. And the liberal media repeats it without investigation because it fits their political bias.’

‘Let’s get back to Obamacare,’ Book said. ‘Under the rationale of this case, is there any human activity or non-activity that Congress may not regulate under the Constitution?’

‘Nope,’ Mr. Stanton said. ‘They’ve got it all now. In fact, in oral arguments, the justices asked the government lawyer that exact question, and he couldn’t think of a single human act that would be free from government control. So now five justices—five lawyers—have given Congress the absolute authority to tell us to do something,
to tell us how to do it, and to fine us—I’m sorry, tax us—if we refuse to do it. I think that’s what they call communism.’

‘It’s called social justice,’ Ms. Garza said.

‘Only if you’re a communist.’

‘All right,’ Book said, ‘today’s Supreme Court decisions are precedents for tomorrow’s decisions. When the Court decided Obamacare, the justices searched for precedents to support their positions. Now that Obamacare has been ruled constitutional—now that the Supreme Court has given its stamp of approval to Congress passing laws that tax citizens if they refuse to engage in a specified commercial activity—what might be the next law that climbs on top of this precedent?’

‘Taxing us if we refuse to buy that Chevy to protect the domestic auto industry?’

‘Yes. But I’m thinking of something bigger.’

‘Taxing us if we refuse to eat vegetables?’

‘Come on, people. This requires thought. Think about the Court’s prior cases, big precedents that made law, like this case. Put those precedents together and what do you have? If the government can force the citizens to do something they don’t want to do by taxing them if they refuse to do it, where might that precedent lead us?’

‘To Russia and Comrade Putin,’ Mr. Stanton said.

He held up another T-shirt:
OBAMACARE: HEALTHCARE YOU CAN’T REFUSE
. Which evoked more laughter.

Book scanned the class. Mr. Brennan was dutifully transcribing his every word, other students were texting or tweeting or zoning out. His eyes landed on a head hiding behind her laptop.

‘Ms. Roberts.’

She peeked above the laptop.

‘You know, don’t you?’

She nodded as if confessing to a crime.

‘Please, tell the
class.’

She pushed hair from her face and spoke in her soft voice. The class seemed to lean toward her as one.

‘Well, under the Obamacare ruling, the government can’t order a woman to have an abortion even though medical care is commerce because that would exceed Congress’s authority under the Commerce Clause; but, under the same Obamacare ruling, the government can tax a woman if she refuses to have an abortion.’

‘But the Bill of Rights would prohibit the government from doing that.’

‘No, it wouldn’t. The Court in
Roe v. Wade
ruled that the, quote, “developing organism” inside the woman has no constitutional rights or protections whatsoever under the Bill of Rights because it is not a, quote, “person” prior to birth. Under the precedents of
Roe
and Obamacare, the Court would uphold such a law. And the circle would be complete: we are nothing more than rocks.’

‘But why would our government ever do such a thing?’

‘Perhaps the sonogram shows the baby has a genetic defect that would require expensive medical care for life. Or the woman is unmarried with no means of support for the child, and public support would add to the deficit. They would do it to save money.’

‘But that’s just wild speculation, isn’t it? I mean, we don’t have anything to really worry about, do we? We’re an advanced civilization. What civilized nation on earth would ever pass such a law?’

‘China.’

‘Thank you, Ms. Roberts.’

Mr. Stanton held up another T-shirt:
OBAMACARE: BEND OVER, THIS IS GONNA HURT
.

‘Mr. Stanton, how many of those do you have?’

‘Just one more.’

‘But, Professor,’ Ms. Garza said, ‘if the government can’t force people to do the right thing, how can the government solve big problems like
healthcare?’

‘Ms. Garza, the Framers did not create a federal government that possesses all powers except those denied in the Constitution, but rather a government that possesses only those powers granted in the Constitution. Perhaps the federal government isn’t supposed to solve—or try to solve—every social problem in America. To solve the problem of obesity, the federal government is now telling every school district in America what to feed their students for lunch. Is that what Madison, Hamilton, Jefferson, and Washington intended the national government to do when they created this country? Perhaps that responsibility resides in the fifty states.’

‘But we have an obesity problem in America,’ Ms. Garza said.

Ms. Roberts raised her hand. Book nodded at her.

‘The dissent wrote, “The Constitution enumerates not federally soluble
problems
, but federally available
powers
… Article One contains no whatever-it-takes-to-solve-a-problem power.” I like that.’

Ms. Garza glared at her. ‘Like this, Liz.’

Another middle finger. Book couldn’t help but hope that Ms. Garza was put in another professor’s Con Law II class next year. Mr. Stanton stood on the back row.

‘Professor, in honor of our last class with Ms. Garza and her T-shirts, I offer this final rebuttal.’

Mr. Stanton yanked open his button-down shirt to reveal a white T-shirt underneath that read:
F#CK OBAMACARE, I’M MOVING TO CANADA
.

The class laughed.

‘And with that, ladies and gentlemen, Con Law One is adjourned for the year.’

The students applauded. The males slapped backs and exchanged fist-bumps; the females embraced. Classes were finished; final exams awaited. Some students left, others gathered around Book. He signed books; they took photos.

The Marfa story had
hit the national media.

*   *   *

Book returned to his office to find Myrna on the phone.