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Rewrite!

By Jesse Taylor
Friday, June 29, 2012 9:04 EDT
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(Welcome to the new space, everyone! Coats in the spare room, and serve yourself.)

There’s a reason that virtually everyone is full of it when they talk about “judicial activism”.

Yesterday, the Supreme Court ruled in an obscure case that the Affordable Care Act was constitutional as an exercise of Congress’ taxing power, despite Congress insisting that it wasn’t when passing the law. CATO claims that SCOTUS “unlawfully rewrote” the act to save it; Megan McArdle decides to write an entry from Shit White People Like and then remark:

Meanwhile, the Court has rewritten the mandate as a tax, even though everyone who passed it said it wasn’t one. 

How, you might gnash and wail (please don’t, it’s unseemly), could the Supreme Court possibly say that the ACA was a tax when Congress said it wasn’t one? When Barack Obama, who is the imperial leader of the People’s Republic of Kenyalumbia, said it wasn’t? Didn’t they rewrite the law, doing something that nobody in the political process ever intended, and hand Republicans a giant victory (their eighteenth of the month)?

In order: because that’s what courts do, “Kenyalumbia”?, and no.

One of the basic things courts are required to do is to take the controversies in front of them and decide, legally, what actually occurred and what rights and remedies are available to the parties in question. Part of that is looking at the events that actually transpired and determining what those events constitute as a matter of law. If courts do not do this, courts become pretty – by which I mean entirely – useless.

Think about it this way. You and I are pretty savvy people (I know you, and I’ve long admired you, but let’s discuss that later). You ask me to take care of some very valuable property, say, jewelry, while you’re on vacation. You’re trying to sell the property, and you’d like me to transfer the jewelry to someone if you sell it while you’re sunning on the Riviera.

(I have no idea why you’re so rich and I’m just hanging out, but let’s assume I’ve retired early and also have a six-pack.)

I lose the jewelry. You end up selling it, and when the buyer comes to my place, I say that I have no idea what happened to it; hell, I don’t even know who you are.  If you’re like anyone else on the planet, you sue me for losing your valuable sack of gems, and the rest of us pick up a new euphemism for our genitals.

When you sue, you argue that we had a trust by which I had a duty to care for and guard your jewelry. I argue that I never had your jewelry to begin with. Ignoring in this analogy that the Obama Administration argued that the ACA was a tax, under the “unlawful rewrite” theory, the judge in this case can do nothing. I pretty obviously had your jewelry, but there was no trust – what we had was a bailment, recognized at law. The court can’t say that our arrangement was what it 0bviously was, because that’s an extrajudicial rewriting of our relationship, so the thousands of dollars of jewelry I dropped behind my bed and you don’t want to know why it was anywhere near my bed is just gone.

Sorry, bud.

Thankfully, this is not the way courts work. Terrible, awful “rewriting” is the reason that when the government says something is not a taking, courts can find that it is a taking. It’s the reason that when the government says something is not a search and seizure, courts can find that it was. It’s the very reason justice is possible, and opposition to that idea is far more activist than telling Congress that they were maybe wrong about describing something they did without changing the action they took.

Image courtesy Wikipedia Commons and the National Archives and Records Adminstration.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
 
 
 
 
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