Con Law

by Mark Gimenez

  Or so Lance thought. Dwight Ford watched the screen as the pickup truck drove straight off the road and flew into the Rio Conchos.

  ‘Shit, they drove into the Conchos!’ Lance yelled. ‘They’re fuckin’ crazy!’

  ‘They’re fucking alive!’ Dwight said.

  Two figures were visible on the screen emerging from the pickup truck as it sank into the river. Above on the bank, the Border Patrol agent fired more shots at them.

  ‘Not for long,’ Lance said.

  Angel had them dead in his sights. He would not be able to get an answer to his constitutional law question from the professor. Oh, well.

  ‘Adiós, Professor.’

  But he could not pull the trigger. He could not move his body. He could not hold the rifle. It fell from his hands. His eyes turned down to his chest. A large hole now gaped in his uniform shirt and his insides hung out. Blood gushed forth. He turned and saw the big sheriff standing there, smoke from the barrel of his handgun hanging in the air.

  ‘Adiós yourself, podna,’ the sheriff said.

  Angel Acosta fell over dead.

  Sheriff Brady Munn holstered his .44 Magnum and searched the Conchos for the professor and Carla in the moonlight and the light from the fires. He spotted them; they were being swept downriver toward the point a mile east where the Conchos joined the Rio Grande. Which was just as well since the wildfire was coming Brady’s way fast. He turned and ran north and crossed over the dry Rio Grande riverbed. The Conchos turned hard east so he lost sight of the professor and Carla.

  He jumped into his SUV, fired up the engine, and stomped on the accelerator. He drove east on the river road a mile past where the Conchos merged in, then slammed on the brakes. He cut the engine and got out. He opened the back liftgate and retrieved his rope. He ran down to the river.

  The current was strong with the Conchos’s water. He searched the river for the professor and Carla, but he couldn’t find them. He yelled for them, but got no response. Just when he was about to run back to the SUV and drive farther down-river, he spotted them.

  ‘There!’

  He yelled to them, and they saw him. He fashioned a loop with the rope then twirled the loop above his head as if he were about to rope a calf in a rodeo competition and flung the loop at the professor. He missed. He reeled in the rope and flung the loop again. The professor grabbed the rope this time. He hung onto the rope with one hand and Carla with the other. Brady dug the heels of his cowboy boots into the earth, leaned his two hundred twenty pounds back, and pulled with all his strength against the current that tried to take them downriver. The rope burned his bare hands, but Brady felt no pain. His hands bled by the time he pulled them to dry land.

  Dwight Ford threw his fists in the air. ‘Yes!’

  The professor and Carla lay there coughing and spitting water, but alive and unhurt. Finally, the professor knelt up and stuck a hand out to Brady. He grabbed the professor’s hand and yanked him to his feet. The professor then helped Carla up. They stood there on the bank of the Rio Grande and gathered themselves as one does after having barely escaped death. To the southeast, the sky brightened with the breaking dawn; to the southwest, the sky burned bright with fire. The wildfire came to the river, but did not cross. No doubt it had scorched everything and everyone in its path. Just as well. What happens in Mexico stays in Mexico. After a moment, the professor turned back to Brady.

  ‘Sheriff—thanks for the help.’

  ‘Now that wasn’t so hard, was it, Professor?’

  Sheriff Brady Munn stretched his big body and gazed upon Presidio County and Mexico beyond. The border carried a harsh beauty and a harsher justice. He shook his head and exhaled at the grandeur of it all. Damn, but he loved the desert at dawn. He grunted.

  ‘You folks want to get a cup of coffee?’

  Chapter 38

  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 godfather. 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 constitutional 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 passenger. ‘You ready to roll?’

  Nadine strapped the goggles on over her black glasses. ‘Yep. Got on my last pair of new underwear. I’m good.’

  ‘Over-share.’

  Book slid on the sunglasses. The sheriff touched his finger to his cowboy hat.

  ‘Adiós, podna.’

  Book shifted 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 bumper 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 Genera
l Motors?’

  ‘Of course not.’

  ‘Why not?’

  ‘That would be unconstitutional.’

  ‘Why?’

  ‘Because I drive a Beemer.’

  The class laughed. But not Ms. Garza. Her T-shirt 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-shifting. If you go uninsured, my insurance premiums will increase to subsidize your care. You will be shifting 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 constitutional 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 unconstitutional.’

  ‘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-bump 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 unconstitutional 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 unconstitutional under the Commerce Clause and also to hold the individual mandate constitutional 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-shirt that read: OBAMACARE: YOU CAN’T CURE STUPID.

  The class shared a laugh.

  ‘Thank you for the levity, Mr. Stanton.’

  ‘My pleasure, Professor.’

  ‘But, Mr. Stanton, what’s the difference between A, Congress ordering a citizen to buy health insurance and enforcing that with a monetary penalty, which the Court said is unconstitutional, and B, Congress taxing a citizen for refusing to buy health insurance, which the Court said was constitutional?’

  ‘Nothing. It’s exactly the same result. Congress is using its power to force citizens to do something they don’t want to do and taking your money if you refuse to do it. Roberts engaged in constitutional sophistry.’

  ‘Why would he do that?’

  ‘Because Roberts wants the New York Times to like him. The liberal media destroyed the legal reputations of conservative justices like Rehnquist and Scalia, and Roberts doesn’t want to suffer the same fate. Problem is, he doesn’t understand that the liberals might like him now since he upheld the biggest government takeover of American life in history, but the first time he goes against them, they’ll crucify him. That’s what they do. So he cratered. He betrayed the Constitution.’

  Ms. Garza stood and faced Mr. Stanton. The debate was on.

  ‘Roberts grew a conscience, that’s why he voted with the liberals.’

  ‘Funny how it’s always a conservative justice who crosses over to vote with the liberals, but no liberal justice ever crosses over to vote with the conservatives. Why is that?’

  ‘Because we’re always right.’

  ‘And therein lies the problem: self-righteous liberals in America who want the government to make an unfair life fair, unsuccessful people successful, stupid people smart
, and everyone ride a bike.’

  ‘Ride this.’

  Ms. Garza stuck her middle finger in the air at Mr. Stanton. He turned his eyes to Book and his hands up.

  ‘Holster that finger, Ms. Garza. And please sit down. We’re here to discuss con law, not social policy.’

  ‘Con law is social policy.’

  ‘Yeah,’ Mr. Stanton said, ‘because liberal justices believe government should control our economic lives.’

  ‘And conservative white male justices believe government should control our personal lives,’ Ms. Garza said.

  ‘I don’t want some uneducated minimum-wage government bureaucrat who wasn’t smart enough to get a job in the private sector deciding whether my children get life-saving treatments.’

  ‘You’d rather have a greedy profit-driven insurance company deciding?’

  ‘Yes. You know why, Ms. Garza?’

  ‘Because your daddy owns stock in those insurance companies?’

  ‘Besides that?’

  ‘No.’

  ‘Sovereign immunity.’

  ‘What?’

  ‘If the insurance company denies treatment and my son dies, I can sue them for a billion dollars. That keeps them honest. If a government bureaucrat denies treatment and my son dies, I can’t sue the federal government for a penny. It’s called sovereign immunity.’

  Ms. Garza shrugged. ‘That’s the price we pay to solve social problems.’

  ‘Name one social problem the federal government has ever solved, Ms. Garza. Education? Drugs? Energy? Poverty? Now they’re going to solve our healthcare.’

  ‘The forty million poor people who can’t afford health insurance deserve medical care, too.’

  ‘They’ve got free healthcare. It’s called the public hospital. And how many of those so-called “poor” people have tricked-out trucks with thousand-dollar wheels and iPhones and tickets to every pro football game, but they just can’t afford healthcare? Those “poor” people know they can still get free medical care, so why pay for it? Why not suck off everyone else? We don’t have forty million people who can’t afford healthcare insurance. We have ten million who can’t and thirty million who won’t. Who’d rather let the rest of us pay their way.’