How I Punked Akhil Amar: Obamacare & Moral Terpitude

Link to Professor Akhil Amar’s Op-ed

An Op-Ed in Sunday’s LA Times by Professor Akhil Amar irritated me so badly that I simply had to comment. Dr. Amar, in this article, inadvertantly or not, conflates the concept of originalism and precedent. His fallacy lies in the same perverse logic that Marshall employed in McCulloch, namely false application of stare decisis. This doctrine that Judges are duty bound to rule in accord with prior decisions is at best extra constitutional. If he were to apply the same rigid interpretation to the Constitution itself as he does to this doctrine, we would have no arguments.

There is one flaw with Dr. Amar’s strict construction of the stare decisis doctrine. If the Constitution is to be regarded as the supreme law of the land, then any judicial ruling that is contrary to that law is null, not only de facto but also de jure. Any adherence to stare decisis in subsequent decisions is null as well. Because judges err, are corruptible, and at times misguided, the doctrine of stare decisis is only tennable in liberal jurisprudence if adopted with it’s conterpart, contra stare decisis. This is the doctrine that judges have a duty to overturn precedent that does not adhere to the positive liberties of the constitution.

Take for example the following statements from the Court itself.

But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. … This is strikingly true of cases under the due process clause.
—Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932)[1] (Brandeis, J., dissenting)

[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.
—Smith v. Allwright, 321 U.S. 649, 665 (1944).

Beginning with the progressive movement in the late 19th century and its proposal to practice Judicial Recall, a doctrine designed to circumvent the Amendment process, there began to be a shift in legal thinking in the nation’s top universities. The trustees of universities began installing faculty of progressive bent to reflect the shifting nature of America’s post industrial political machines. Most notably was Princeton’s Woodrow Wilson. These faculty accelerated the “living document” framework for constitutional interpretation.

The most powerful shift in perspective was the idea that the Constituion was established as a charter of negative liberties, or that it expressly dictates that which the state cannot mandate, legislate or adjudicate. Though negative construction was used in both the Bill of Rights and the Constitution (ie “Congress shall make no law…”), the sections pertaining to negative liberties are expressly divided from those sections that delimit the list of positive liberteries temporarily loaned by the people to the Federal Government. These positive liberties delimit the absolute extent to which the government can legally operate. That is the entire reason the Bill of Rights was kept separate upon constitutional ratification, to provide a bulwark against negative constructionists. Without the idea of positive construction, Article 1 Section 8, the section that delimits the positive powers of Congress – its only powers, would be nothing more than a list of cute suggestions to be framed in the negative liberties of section 9.

Mr. Amar, invoking the paleo-progressive cult of John Marshall, argues that the regulating of interstate commercial innaction and the mandate to buy a product are constitutional, but he does so only after establishing the infallibility of stare decisis. He also dishonestly ignores Judge Vinson’s refutation of the “tax” argument.

Remember, Mr. Amar invoked stare decisis and then name dropped President George Washington. (Rule #1 of Progressive Apologetics: Always reference the Founders when attempting to bend the principles of liberty.) This is intellectual dishonesty and Mr. Amar has done it deliberately. The doctrine of stare decisis only applies to decisions relating to former court cases, not legislation that was never brought before the court. The act of simply passing legislation does not make it constitutionally sound, it must pass the inspection of the federal appellate courts. Washington’s Militia Act never did.

Furthermore, the Court’s Memorandum Opinion denying the Defendant’s Motion to Dismiss states:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate – and tax – a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.
-Mem. Op. Aug. 2, 2010, ECF No. 84

What I find most intellectually dishonest in this article is Mr. Ahmir’s blatant neglect of the Wickard v. Filburn case that upheld the Agricultural Adjustment Act of 1938 (AAA) to be constitutional as it is perhaps the best case for establishing precedent in support of regulating interstate commercial innaction.

Here’s the background: The AAA allotted Filburn permission to harvest only a certain amount of wheat from his land in 1941. He ended up harvesting 239 bushels of excess wheat, but decided abstain from participating in any commerce whatsoever with that excess wheat. He kept it for use in his own home. The government fined Filburn. The court’s decision? The AAA was constitutional on the grounds that:

A factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions… Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

Here we have a real case, adjudicated by the Supreme Court, wherein the Congress is permitted to regulate interstate commercial innaction. So, why didn’t Mr. Ahmir reference this case? Could it be that he is ignorant of its existence? Hardly. The guy is the Southmayd Professor of Law at Yale, and Legal Affairs named him one of America’s Top 20 Legal Thinkers, alongside Cass Sunstein, William Rehnquist, Ruth Bader Ginsburg, and Sandra Day O’Connor.

The truth is Mr. Amar evaded this case because Justice Robert H. Jackson admits in his majority opinion that this case was itself an exception to the stare decisis doctrine:

Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.

Indeed, if the Stone Court had upheld the very doctrine that Mr. Amar used to dishonestly reference Washington’s approval of mandated purchases, then today we would have explicit and obvious precedent that Obamacare is absolutely unconstitutional.

Finally, we are left with that final piece of elitist sophistry that Mr. Amar cast upon us with puffed up faux benevolence.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. [emphasis added]

At this point, I can with full clarity of conscience label Dr. Akhil Amar a liar. Page 13 of Judge Vinsons ruling states:

In contrast to [prior drafts], the Act — which was the final version of the healthcare legislation later passed by the Senate on December 24, 2009 — did not call the failure to comply with the individual mandate a tax; it was instead called a “penalty.” The Act reads in pertinent part: “If an applicable individual fails to meet the requirement of subsection (a) . . . there is hereby imposed a penalty.” Congress’s conspicuous decision to not use the term “tax” in the Act when referring to the exaction (as it had done in at least three earlier incarnations of the legislation) is significant. Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language. Thus, “[w]here Congress includes [certain] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted text] was not intended.

Judge Vinson dedicates 24 of the 65 pages of this ruling to the question, “Is the ‘Penalty” for Non-Compliance with the Individual Mandate Actually a “Tax” for Constitutional Analysis?” The question at hand is rooted in a powerful right Congress possesses, that of Anti-Injunction. It means that before any lawsuits regarding taxes can be held, the individual must pay all required taxes first, then sue the government for a refund. The question as to whether or not the penalty was a tax is central to this particular case. If Congress intended it to be a tax, then the case was premature and would have to wait until taxes were at least attempted to be collected. Judge Vinson approached this in an eight part investigation as follows:

1. Revenue-raising vs. regulatory intent.
2. The Court’s role in ascertaining what Congress intended.
3. Congress did not call it a tax, despite knowing how to do so
4. Congress did not state that it was acting under its taxing authority, and in fact, it treated the penalty differently than traditional taxes.
5. Lack of statutorily-identified revenue-generating purpose
6. Does the Anti-injuction Act apply anyway?
7. Accountability
8. For Constitutional purposes, it is a penalty and must be analyzed under Congress’s Commerce Clause power.

To simply state “It says that those who remain unisured must pay a tax”, as Mr. Amar did, is utterly dispicable and morally reprehensible. The decision uses the word tax, or a derivation thereof 257 times. A more thorough investigation into Congress’ intent could not have been waged.

Not only has Mr. Amar adopted the pernicious view that the Constitution is irrelevant, but he repeatedly employs fallacious methods to dupe his unquestioning disciples into a group-think, ideological coma. In the end, as if to crown his piece with one last appeal to venomous personal attacks, he has the moral terpitude to slander Judge Vinson as a racist. Akhil Amar’s approach to this ruling is sloppy at best and purposefully fraudeulent at worst, either way his academic integrity is absolutely compromised by a deep-seeded partisan ideology. Indeed, one can say that this quality of scholarship and moral fielty is exactly what we have come to expect from the L.A. Times and Yale Law School.