If Rule of Law is Replaced by Rule of Party, We're in Trouble
July 22, 2014
RUSH: We're starting with Dave in Manhattan. Dave, thank you for waiting. I appreciate it. Hello.
CALLER: Thanks, Rush. Great to talk to you. I have a theory about this, quote, error. I don't think it was an error at all. I think back to when they were trying to pass Obamacare and squeeze the states to behave the way they wanted to, and I think that they may have done this on purpose just to have an enticement for the states to join and create an exchange and feeling that, you know, they could worry about changing it later and railroad as many states into it as possible.
RUSH: Well, there's no question that the Regime was highly agitated when so many states failed to set up an exchange. And I think you're exactly right. I think the law was written specifically to say you could only get a subsidy through a state exchange to put pressure on the state governors, particularly Republicans, to set up exchanges. There's no question. The point that Dave is making is there's nothing inadvertent here and there's no glitch in the wording. This was intentional to force pressure, put pressure on the governors of these states to set up exchanges because it was felt that the public would figure out someday that Republicans were denying people their subsidies and Affordable Care Act.
They were seeking a political advantage with this and they specifically left out the federal government when it came to subsidies. I think you're exactly right. I don't think there's any question about that. And now they're trying to fall back, "Well, come on, everybody knew that Congress meant that everybody should get a --" No. Otherwise it would have been in the law. Remember, Congress wrote the law, everybody is saying, "Congress intended." There wasn't a single Republican vote for this. The Democrats wrote every word here, folks. So if they want to say that Congress goofed up, the Democrats goofed up. The Republicans had no role in this.
There wasn't one Republican vote for Obamacare, and there was not one Republican who participated in writing this law. So everything in this law was written by Democrats, Democrat staffers, representatives of the Regime, and everything in there is what they intended. Make no mistake. Now, I know it's massive and there's some probably unintended consequences that they couldn't anticipate, and I think we know that's true by virtue of all the waivers and the mandates that Obama has had to delay so as to avoid the full impact.
Cincinnati, Jack. You're next. Great to have you on the program. Hi.
CALLER: Hi, Rush. This is Jack from Cincinnati. I can hardly believe I'm actually talking to you.
RUSH: Glad you got through.
CALLER: Thank you. My question concerned the ruling today. I've been listening to you, earlier in your show you said that because, I think you said, seven of the 11 full judges were appointed by Democrats and by Obama. They can't simply say we change the ruling. There has to be some basis in law, don't they? If the law's so clear as you suggested, what basis could they possibly use --
RUSH: Very easily. Very easily. They would simply fall back on what they thought Congress intended. That no reasonable person would ever leave the federal exchange out of the subsidy program. They couldn't possibly have intended that. And that's what the Regime will argue. So the justices or the judges will have a fall-back position, "We agree with the case as argued by the Regime that there was never any attention to leave the Feds out of this." It'll be easy.
RUSH: Now, back to the last question we got here on Obamacare, because Dan in Cincinnati had a great point. He said, "Rush, wait a minute now. The law is open and shut as it is. Why does it matter that seven out of the 11 judges might have been appointed by Democrats? What possible way are they gonna have to overturn this?" I said, "That's easy.
"All they're gonna have to do is say, 'No reasonable person would have ever expect Congress to exclude some citizens from the subsidy program in Obamacare. Congress would have never intended that.'" That is precisely what the Regime is gonna argue when they go to their full en banc hearing at the full DC circuit, which is 11 judges. They're gonna say, "Eh, it's a glitch. Congress intended..."
The response to it is gonna be, "Wait a minute, now. You guys are talking about 'Congress' as though they're some enemy. The Republicans had nothing to do with this. This is your bill. You wrote it. You passed it. You didn't get. There's no bipartisan in Obamacare at all. The Republicans were not even invited to the party. Not that they wanted to be, but they weren't.
"This was written, slam-dunk passed, and voted on by the Democrats exclusively -- and it's real simple. It's ultimately simple. If Congress had intended for everybody to get subsidies, they would have said so. The law would say, "Even citizens who sign up through HealthCare.gov qualify for subsidies," but the law does not say that. The Obamacare law specifically says that subsidies are only available to citizens who sign up for Obamacare through a state exchange.
It does not imply that everybody's entitled to subsidies regardless where they get Obamacare. It specifically says "state exchanges." They went out of their way to say it, and they said it for political reasons. They put it in there purposefully to put pressure on Republican governors to set up state exchanges. The thinking at the time on the part of the Democrats was they knew that Obama was not popular among Republicans, and they knew that a majority of Americans didn't want Obamacare.
So they had to do something here in order to make it palatable, and the subsidies were a key part of it because nobody can afford this on their own except the precious, you know, maybe one, two, maybe 5% of the population. Outside of that, everybody is gonna need help. So what the Democrats did was purposefully exclude the federal exchange, which is Obamacare (HealthCare.gov), to put pressure on all the Republican governors to open exchanges.
Their feeling was that these Republican governors would not want to take the hit of denying their voters, their citizens subsidies. The Democrats thought they could make great political hay if a Republican governor would not establish an exchange. They could then turn around say, "This guy doesn't care about people! He doesn't care about affordability. He doesn't think people should have health care," and they thought they could ruin a bunch of Republican governors.
Well, the Republican governors (for the most part) held firm, did not set up exchanges, and so people in those states had no choice but than to go to Obamacare, HealthCare.gov, where there are no subsidies. So the DC circuit today read the law, and there's only one conclusion you can come to: The law says what it says. When you're interpreting the law...
This is why, by the way, folks, original intent is such a big deal when it comes to interpreting the Constitution. It's why those of us who believe in original intent are so hated by the left. The left wants the Constitution to be bent, shaped, "interpreted" by present-day standards (parentheses, "of depravity and perversion," closed parentheses).
People like me and you -- most of us who believe in original intent -- are always trying to find out: What did the Founders mean?
In most cases, it's laid out.
Well, the original intent of this law was that subsidies were only available through state exchanges. If they had wanted it otherwise, the law would say so, but the law does not. The argument now is, "Hey, if you want subsidies for people through HealthCare.gov, then the law should have said so."
(sputtering) "Well... well... we didn't mean that! We meant... We meant for everybody to get them! Everybody knows that Congress meant."
No. We don't know that because you didn't say that. The law says the exact opposite. (sigh)
Now, David French, who is writing here at a blog, says, "The judges in the [2-1] majority recognized the impact of their ruling, but they also recognized their limited constitutional role. It is not the job of judges to correct perceived congressional errors or to rewrite laws..." That's for the president to do.
Ha-ha-ha. Just kidding. "It is not the job of judges ... to rewrite laws to make them more economically sensible," or to make them fairer or to make up for the stupidity on the part of the author of a particular law. By the way, it "is not the IRS's role either," and the IRS is who ultimately went in and did this.
The judge interprets the law as it exists, and that leads to the question we got from the caller in Cincinnati: "Wait a minute. The law says what it says. Why does it matter the political party of the judges?" It shouldn't, but it may -- and if it does we now have gone from rule of law to rule of party, because if the law is determined by party loyalty...
If all you have to do to get a law changed is to have a judge from your party look at it and give it his interpretation of what you want it to be, there is no law. We're not dealing with law at all here. That's a mirage. But the way I think they'll do it -- and we could be surprised. I mean, four of the seven judges that are, i.e., Democrats...
Four of the seven judges on the DC circuit were appointed by Obama; seven of them were not. But there seven total judges nominated by Democrat presidents, four of them by Obama. What does it say that the assumption is just out there now, "Well, this is gonna be overturned. You have seven Democrat judges." What does that say?
It's just natural to ask: What does that say? It means that the law isn't the law. The law is what the Democrat Party wants it to be. Now, we could be surprised. These judges could look at the law and uphold the three judges who voted prior to them, in which case (chuckles), there is gonna be hell to pay from the White House on down.
Well, this is another reason why, Republican Senate, you want to be able to stop some of these Obama appointments and all that. True. But the way they're gonna do it, if we've lost the rule of law and have now the rule of party, it's very simple. The Obama and Democrat judges will simply say, "Well, look, a common-sense interpretation of the law would obviously include the fact that Congress intended for everybody to have subsidies, regardless where they signed up for the law. Doesn't matter. Obviously an oversight by Congress, and we're here to correct that oversight and enforce what was originally intended."
And they could easily say that. That's what the Regime will argue. The judges are not even gonna have to come up with that on their own. All they're gonna have to do is rely on the Regime to make a persuasive argument on that basis. "Hey, come on, we're all adults here. Does anybody really think Congress meant to leave out people that sign up for HealthCare.gov from subsidies? Come on." You know, and try to shame everybody into accepting what isn't the law.
And now a brief time-out, ladies and gentlemen, as we conclude here with this easily understandable broadcast segment. They all are. It's what we do is we make the complex understandable.
RUSH: Syracuse, New York, this is Patrick. Thank you for waiting, sir. Great to have you on the Rush Limbaugh program. Hi.
CALLER: Hey, Rush. Thanks for taking my call. A little while ago you were discussing the court decision regarding the Obamacare subsidies.
RUSH: That's right.
originalCALLER: You said the White House will try to argue framers intent and they'll say it was obviously the intent of Congress that the federal exchanges should be included. There's a strong counterargument, though, to congressional intent. And, in fact, you've actually played the evidence of that counterargument many times on your show before, and the evidence against intent is the recording of Nancy Pelosi saying, "We have to pass the legislation to find out what's in it." How could there be congressional intent when the Speaker of the House at that time openly admitted they didn't know what provisions were even included in the law?
RUSH: Well -- (laughing) -- I like that. I can just see the plaintiff saying, "What do you mean, intent of Congress? The Democrat leader of the house, the Speaker of the House, when this thing was written said they had no idea what was in it and we had to pass it first to find out what was in it. So how in the world can you impute intent?"
By the way, folks, as a legal premise, there's no such thing as the intent of a legislative body. There's only what they write. When you start getting into the intent of a legislative body then you're off the path. I mean, you can do it, some people can be persuasive arguing that way, but in a strict legal sense -- of course Josh Earnest at the White House (imitating Earnest), "Ah, this law, this is for legal beagles, academics want to argue about it, we don't care. You get your subsidy, you're gonna keep getting your subsidy. You like your subsidy, gonna get it. It doesn't matter what the law says. These people argue about it."
The intent of Congress, I mean, there is, in a legal sense, you hear the phrase used, but it is not a way of substituting meaning, which is what these people are trying to do. But it really only matters as far as the judges who hear the case and what they think. And sadly that's where we are. The rule of law is really not the rule of law. It's the rule of judges and their party more and more it seems.
But, Patrick, I appreciate the call. That's an interesting observation. Pelosi: What do you mean? We didn't know what was in it 'til we passed it. That was one of their selling points. We have to pass it to find out what's in it. It's so complicated, we can't possibly know what's fully in it 'til it starts being implemented. I don't know. You talk about moral authority and moral high ground, these people don't even try. They're just thugs. They just want to use the full force of the power of the state to just force things on people. Rule of law and decency, what's right, it doesn't matter at all. It's just what the state, the Regime, happens to want.