I’ve said — repeatedly — that I’m not a lawyer. I believe that I have an above-average understanding of the law, but I’m still just a layman. And there are times that I’m glad I’m not a lawyer. In fact, there are times when I thank my lucky stars that I’m not a lawyer.
Because, if I was a lawyer, these two stories in the news recently would, I fear, actually, make sense to me.
The first is more fallout from the corruption trial of the late Alaskan Senator Ted Stevens. It turns out that during his trial, prosecutors deliberately withheld evidence from Stevens’ team — in violation of the law, which says they must turn over all the evidence they uncover. There was a lengthy investigation into this, and the conclusion: there should be no charges for contempt of court for the prosecutors who broke the law — because the judge didn’t specifically tell them “you have to obey the law and do this.”
As a layman, I can look at this situation and say “WTF? These are prosecutors — they are the goddamned EXPERTS on the law, especially that of criminal trials. Further, they are entrusted with ENFORCING the law — they, of all people, should be held to the highest standard! They can’t plead ignorance, and they can’t rationalize asking for mercy! Fire ’em, disbar ’em, and give them the maximum sentence Stevens faced!” Were I a lawyer, I might have to say something like “yes, they did act improperly, but it was the judge’s job to assert that the law did apply in this case, so they should be excused — and judges should be more careful in the future.
And then there’s the case of child care providers in Minnesota. There is a push (by unions) to unionize them, so the unions can collect their dues. There’s not much of a push for unionizing among the workers themselves. Well, Governor Mark Dayton has issued an executive order calling for a vote on unionizing of all of the state’s child care providers.
But here’s the catch: the only ones voting (from my reading) are the state-licensed child-care providers. But the voting will be binding on all providers, whether or not they are state licensed.
Here’s the layman in me again: “WTF? How the hell can a vote on unionizing a large group be restricted to only a small subset of that group — but binding on all of them? It’s the same principle as ‘taxation without representation’ — the majority of the people bound by this vote are being denied the chance to vote in it!”
Were I a lawyer, I’d be digging into the details and finding just how it’s rationalized, and figuring out some way that this wholesale screwing of people is somehow legal and acceptable. I’d string together several obscure existing laws and court rulings and say yeah, it’s legal, so shut up and live with it.
And as I think about it, this is something I’ve done repeatedly over my blogging career. When the Kelo v. New London case came up, the argument was that the city could use the Eminent Domain right — originally intended and understood to be for the taking of private property for “the public good” — to take land from private citizens and give it to a private company for their exclusive use. The vast majority of people had always thought of “eminent domain” to be for schools, power lines, sewer lines, government buildings — in general, something that would be for “the public.” But in Kelo, it was because Pfizer wanted a new plant — and didn’t want to get the land the traditional way. The city argued that the jobs created by Pfizer would be a “public good,” and took the land from its owners and signed it over to Pfizer. (Who actually changed their minds and didn’t bother building the plant.) Lawyers argued that “public use” didn’t really have a hard definition, so as long as the city could make a kind of argument that the public was getting some kind of use or benefit out of it, that was fine.
And then there’s ObamaCare. The argument for the government’s power to demand — under penalty of law — that every single citizen buy a good or service simply for the privilege of living is, to a lot of people, a hell of a stretch. The argument that the Commerce Clause — Article I, Section 8, Clause 3 of the Constitution, granting Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” — says that Congress can do that. I — and a lot of others — take a look at other cases where the federal government has used a defined power as an essential “blank check,” like the Navigable Waters clause, and get scared as hell at the implications. Once, as a thought experiment, I tried to find the most ludicrous example of how the Commerce Clause could be used — and figured out that Congress could actually regulate masturbation. (Dare me, and I’ll spell it out in the comments.)
But to a lawyer, that doesn’t matter. What matters now is the case at hand — to hell with the ramifications and precedents and implications. In this case, they can argue how one’s decision to have or not have health insurance can, in some tangential fashion, affect “interstate commerce,” because that’s the side they’re hired to argue, so that’s all that matters.
And don’t hand me the “necessary and proper” clause garbage. That one — “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer there of” — is not a power in and of itself. It is an enabling power — it only backs up an existing power.
Yeah, I’m no lawyer. And I don’t think I ever could — I can’t quite turn off my common sense long enough to buy into the kinds of ridiculous arguments adn beliefs that they seem to require.