Monday, March 22, 2010

It Turns Out That Bart Stupak...

...Is just another Democratic politician, after all.

Congressman Stupak has been speaking for weeks now about "standing up for principles" and taking a "principled stand" for life. So where did his principles go?

It is sad, really. Congressman Stupak could have been regarded as a Pro-life hero. On Saturday evening, the night before Stupak flipped, National Review Online's Corner ran an e-mail from a doctor in Stupak's district, saying:
I am proud to have him as my Congressman despite my differences with him. His strength of character in the face of tremendous pressure has been exactly what is needed. I have called and e-mailed him to thank him, and I will continue to pray for him.

I was coming to think of him as such a hero. Had he held firm, I was prepared to make a substantial (for me, anyway) contribution to his re-election campaign, as I knew he was facing a primary challenge from a rabid pro-choicer. I was also contemplating organizing a pro-life petition drive to urge the Michigan Republican party not to run an opponent against him in the fall election. That is how highly I was coming to think of him. Needless to say, I will not do any of those things now.

So why did he do it? Of course, we cannot crawl inside his head or heart and see his inner motives. But we can and indeed must examine his statements and actions. And I at least find his statements and actions in this matter to be either incomprehensible or, in the words of another blogger, "unconscionable".

Congressman Stupak, in his statement explaining his decision, said that he was accepting a promised Executive Order from President Obama as a measure that would "protect the sanctity of life." He further added that "the President's executive order makes it very clear that [abortion] will not happen," under the auspices of the Obama Health Care bill.

The problem: this executive order will do nothing at all to prevent abortions. It can't. Legally and constitutionally, it can't. You see, an executive order cannot undo the provisions of a law passed by Congress and signed by the President. Only another law can do that. Furthermore, an executive order cannot undo settled precedent of constitutional law.

Some writers and commentors over at Vox Nova have asserted that the opponents of Obamacare and the executive order fear that Mr. Obama will rescind the executive order, as though such a fear was ridiculous ("It's pointless to argue with them", one said.) Well, given the chicanery, baiting-and-switching, and misrepresentations that the President has perpetrated in getting this bill passed (mentioned in my previous post), I think it's entirely reasonable to mistrust his bona fides in this matter. However, if you're of a more trusting nature, and choose to think that the President will not rescind the order when it becomes politically expedient, well, good luck to you with that.

But, as was the case below, the President won't even have to rescind the order for it to be rendered null. It is a nullity as it is written. And that nullity will be made manifest in the first legal challenge mounted. Why, because, as I said above, an executive order can't undo the provisions of a law. And remember, as I wrote below, that the provisions of the Obamacare bill, since they do not incorporate Hyde-like language, will mandate that abortions be funded. So all someone has to do is challenge the executive order and the whole house of cards comes down. And the President will then be able to make a long face, go on television, and say how sorry he is, but that the courts have tied his hands in the matter. He and the congressmen who bought into this scheme will have their cover. Are we to imagine that smart lawyers like the President and congressional leadership aren't aware of these things?

But Congressman Stupak, and his allies, were warned about this as well. On Sunday morning Richard Doerflinger, the US Bishops' legal analyst, sent a memo to the aides of Congressman Stupak and others warning that this executive order didn't pass muster. Doerflinger wrote:
One proposal to address the serious problem in the Senate health care bill on abortion funding, specifically the direct appropriating of new funds that bypass the Hyde amendment, is to have the President issue an executive order against using these funds for abortion. Unfortunately, this proposal does not begin to address the problem, which arises from decades of federal appellate rulings that apply the principles of Roe v. Wade to federal health legislation. According to these rulings, such health legislation creates a statutory requirement for abortion funding, unless Congress clearly forbids such funding. That is why the Hyde amendment was needed in 1976, to stop Medicaid from funding 300,000 abortions a year. The statutory mandate construed by the courts would override any executive order or regulation. This is the unamimous view of our legal advisors and of the experts we have consulted on abortion jurisprudence. [emphasis mine] Only a change in the law enacted by Congress, not an executive order, can begin to address this very serious problem in the legislation."

This analysis has since been echoed and expanded by numerous legal and constitutional experts.

In other words, as I wrote above, since the constitutional law and the provisions of the bill itself trump any executive order, the President's executive order will be a nullity the moment it is signed.

And, once again, if you don't believe me, believe the actions and words of pro-choice representatives. Congresswoman Debbie Wasserman-Schultz is a committed pro-choicer, and she said, "Well, it can't be a change by executive order, because an executive order can't change the law":

Note that after that clear legal statement, she dissolved into double-speak. She said that "unequivocally... we would not change the Hyde amendment." Well, the Hyde amendment doesn't apply to the Obamacare bill, as she undoubtedly knows. Everything she says after "an executive order can't change the law" is all stated in the context of the Hyde amendment, which doesn't apply. She concludes by lamely saying the order would provide "further comfort" for the members concerned about this issue.

And don't forget the co-chair of the House Pro-Choice Caucus, Rep. Diana DeGette, agreed to the Executive Order. The leader of the pro-choicers in Congress is unfazed by the executive order, as I wrote below, because she knows it to be a house of cards.

So, why did Rep, Stupak go along with this? Well, as I said, I can't know his heart or inner mind, but a couple of possibilities strike me: The first is that Stupak's flip-flop was a cynical ploy, and that he was not really committed to making a serious pro-life witness. I'd like not to believe that, but the possibility can't be dismissed. This video of Stupak from last summer saying he could vote for health care bill in spite of abortion funding, at least calls his sincerity into question. And his flippant remark to NRO that "the sky could fall" does not exactly foster an image that he is looking at his flip-flopping in a serious way. However, I don't really buy this view. I just don't see that kind of duplicity and deceit in his character.

Another possibility is that Rep. Stupak was fooled: that he was sold a bill of goods by Obama and Pelosi. I'd like not to believe this either, as the Executive Order scheme is really the thinnest of dodges - tissue thin. But others have been fooled, as I wrote below. One thing that leads me to believe that this may be possible is the fact that, all along, Mr. Stupak has been saying that he really, really wanted to support this, that he really wanted to "be a yes" for Obamacare. We are all more easily misled regarding things we really want or really want to believe in. If Bart Stupak really wanted to believe in this Health Care bill, he might have been more ready to accept a superficially satisfactory "fix" than someone a little more skeptical.

Whatever the case may be, Mr. Stupak will have his conscience to wrestle with, and, like all of us, he will have to account for his actions one day to the One who will know what was in his mind and heart. Whether he was playing us, or whether he was fooled, he has shown that he should no longer hold office. But regardless of which of these possibilities is the reality, he most certainly needs our prayers.