Do Democrats really want to open this Pandora’s Box?
The Democrats who attacked President Trump’s travel order in front of carefully-selected Democratic judges made the extraordinary claim that the President’s statements on the stump, as a candidate, were somehow relevant to whether the order was constitutional. This claim implies that an order may be unconstitutional if issued by one president, while the exact same order would be perfectly fine if issued by another. This is an absurd result.
Stop for a second.
Forget that Donald Trump is President. Forget that Republicans took control over Democrats in a pendulum swing that has been swinging since the founding of our Republic. Forget the current case, forget issues regarding immigration. Forget everything that is going on, except this:
That we are now in the process of establishing precedent based not on the order being passed, but on the campaign statements made by the politician who has crafted that order.
We are now living in a world where we don’t care about the underlying principles that drive our decision making, and like little children we whine and cry until we get our way. But then, perhaps the world has always been like this; after all, what were the Anarchists doing in the 1880’s in France but the far more violent equivalent of throwing a temper tantrum: whining and crying and breaking thing and killing people until they got what they wanted.
But underlying principles are important.
And the underlying principle we are about to establish into precedent is this:
Courts can arbitrate law based on campaign statements.
This, despite the fact that it is well believed that politicians lie on the campaign trail.
Consider what would happen if we can arbitrate law based on what was promised on the campaign trail (often when politicians have insufficient information to fully understand the consequences of what they are promising), rather than based on the final result (arrived at with complete information and political feedback).
Obamacare would be dead on arrival; Jonathan Gruber, the economics professor from MIT who was a principle architect of Obamacare (until he had to be tossed under the bus) omitted point-blank that because of the scope of the PPACA (as amended), the bill could not be written or passed in a straight forward way.
“You can’t do it political, you just literally cannot do it. Transparent financing and also transparent spending. I mean, this bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes the bill dies. Okay? So it’s written to do that,” Gruber said. “In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in, you made explicit healthy people pay in and sick people get money, it would not have passed. Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical to get for the thing to pass. Look, I wish Mark was right that we could make it all transparent, but I’d rather have this law than not.”
So a number of statements made about Obamacare were well known lies–meaning that when they were said, the people crafting the law knew they were false: “If you like your insurance you can keep it. If you like your doctor you can keep it.”
Of course the hedge that the Administration kept in mind was the belief that a top-down administrated health care insurance policy put into place by Obamacare would be so superior to existing plans that no-one would willingly keep their old plans.
But that’s not how it worked out.
Imagine our core principle–that campaign promises can be used by courts to inform their rulings. Should the same courts who are now gutting an executive order which would be considered legitimate if passed by another President substantially force the rewriting of the Patient Protection and Affordable Care Act (Obamacare) because public statements about that bill did not match the contents of that bill?