Con Law Part 52

The desert had changed John Bookman. He had come to this harsh land and paid off an overdue debt. And while he would never be a father, he would now be a G.o.dfather. To Nathan Jones Jr. Brenda had asked Book when they had said their goodbyes.

'Final exam, Nadine. What did you learn in Marfa, Texas?'

'A, I like to hit bad guys in the head with beer bottles. B, I'm a lot tougher than I thought. And C, I matter. To you. To my dad. To myself.'

'Very good. You made an A on this field trip.'

'Can we go home now?'

'Yes. We can go home now.'

It was Friday morning. Book had brought Nadine back to the Paisano the day before. He and Carla had given written statements to the sheriff and the FBI, DEA, and Border Patrol and an exclusive interview to Sam Walker for his next edition. Nathan Jones had not been killed by an evil oil company or a greedy fracker, but by his best friend who needed a job. But Billy Bob Barnett sat in the Presidio County Jail pending transfer to federal court in El Paso on criminal environmental charges. And his lawyer, Tom Dunn, was under investigation for aiding and abetting his client. But the videotape had been lost, and the tankers burned, and there were jurisdictional issues since the dumping occurred in Mexico. Hence, conviction of either man was doubtful. They were innocent until proven guilty beyond a reasonable doubt. That was const.i.tutional law in America.

Book sat astride the repaired Harley outside the courtyard of the Paisano Hotel; Pedro had done a good job. Nadine sat behind him with her right leg in the cast secured to one side and her left arm in the cast secured to the other. Sheriff Brady Munn and Carla Kent stood next to them.

'Official line is, those two Border Patrol agents died in the line of duty,' the sheriff said. 'Drug bust gone bad.'

'Figures. Thanks again, Sheriff. For your help.'

'It's what we do out here in this desert, Professor.'

Carla bent down and kissed Book on the cheek.

'What are you going to do now?' he asked.

'Make sure Billy Bob's convicted. And fight fracking.'

'It's good to be busy.'

'You ever get up to Santa Fe, look me up, cowboy.'

'Comanche.'

Book, Carla, and Nadine had eaten take-out from Maiya's on Rock's outdoor patio the night before. They drank too much wine and beer. Nadine had fallen asleep, so he had carried her to Liz's bed and tucked her in. Then Carla had collected on her rain check. They had danced under the stars to music drifting over from Padre's Marfa. And they had spent one last night together. Book fired up the Harley and pulled on the doo-rag.

'You know,' Carla said, 'you really should wear a helmet. You're lucky you didn't get brain damage in that crash.'

'It's already damaged.'

'Well, you are a half-crazy Comanche, but you can still find your way home.'

'So far.'

She stared at him then abruptly took his face and kissed him full on the lips. A long kiss.

'There would be romance,' his intern said.

Carla finally released Book and stepped back. The sheriff stepped forward and stuck a hand out.

'I ain't kissing you.'

They shook.

'You take care, podna. You too, little lady.'

Book turned his head to his back-seat pa.s.senger. 'You ready to roll?'

Nadine strapped the goggles on over her black gla.s.ses. 'Yep. Got on my last pair of new underwear. I'm good.'

'Over-share.'

Book slid on the sungla.s.ses. The sheriff touched his finger to his cowboy hat.

'Adios, podna.'

Book s.h.i.+fted into gear and gunned the Harley south on Highland Avenue. Nadine raised her good arm into the air. Sheriff Munn and Carla Kent smiled at the b.u.mper sticker on the back of Nadine's seat that read: I JUDD.

ONE MONTH LATER.

Epilogue.

'Mr. Stanton, if the federal government can force an American citizen to buy health insurance, can it also force you to buy a Chevrolet vehicle since the government now owns twenty-seven percent of General Motors?'

'Of course not.'

'Why not?'

'That would be unconst.i.tutional.'

'Why?'

'Because I drive a Beemer.'

The cla.s.s laughed. But not Ms. Garza. Her T-s.h.i.+rt read I OBAMACARE in honor of that day's Con Law topic.

'Let's turn to the majority opinion of Chief Justice Roberts in National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services. It was a five-to-four decision actually, it was two five-to-four decisions-with Roberts being the deciding vote both times. The law under the Court's review was the Patient Protection and Affordable Care Act, also known as Obamacare, the key provision of which is the so-called "individual mandate." Essentially, that provision requires all citizens not covered by a government or employer plan to buy private health insurance. If they fail to do so, they must pay a penalty to the government. What was the idea behind the law?'

Ms. Garza's hand shot into the air.

'Ms. Garza.'

'The individual mandate requires everyone to pay into the health insurance system in order to prevent cost-s.h.i.+fting. If you go uninsured, my insurance premiums will increase to subsidize your care. You will be s.h.i.+fting the cost of your medical care to me. We must force everyone into the system. That's the only way Obamacare works. That's the only way to make the healthcare system fair.'

'Ms. Garza, is fairness the issue before the Supreme Court?'

'It should be.'

'Not my question.'

'No.'

'What is the issue before the Supreme Court, in this or any other case, when the Court reviews a Congressional act?'

'Whether Congress acted within its const.i.tutional authority.'

'Correct. Mr. Stanton, what was the plaintiffs' main argument in that regard?'

Mr. Stanton's head was down. He was texting on the back row.

'Mr. Stanton, if you please.'

'Sorry, Professor, I'm selling my Whole Foods stock. Bought it at seven after the crash, selling it at ninety-four.'

'The appellant's main argument, please.'

'That the individual mandate exceeded Congress's power under the Commerce Clause.'

'And the Commerce Clause authorizes Congress to do what?'

'Regulate foreign and interstate commerce.'

'But the business of health insurance is clearly interstate commerce-commerce that crosses state lines. Why did the plaintiffs think the individual mandate exceeded Congress's authority?'

'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 unconst.i.tutional.'

'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-b.u.mp 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 unconst.i.tutional 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 unconst.i.tutional under the Commerce Clause and also to hold the individual mandate const.i.tutional 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-s.h.i.+rt that read: OBAMACARE: YOU CAN'T CURE STUPID.

The cla.s.s shared a laugh.