Oliver Wendell Holmes was wounded three times on the battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence.
A recent report from the Wall Street Journal flatly stated that with “so many unilateral executive waivers and delays . . . ObamaCare must be unrecognizable to its drafters, to the extent they ever knew what the law contained.” As Richard Epstein memorably put it, this amounts to “Government by Waiver.” In the case of Obamacare, the waivers and exemptions go to the heart of the bill itself. Healthcare coverage mandates for companies have been waived until 2015, and now word comes that the individual mandate has been quietly waived indefinitely for those individuals whose plans were cancelled and who cannot find affordable insurance on the exchanges. In effect, the provision of the law that compels persons into the government healthcare market has been shelved for what surely must be a significant portion of the Obamacare market, i.e., individual insurance policyholders whose plans were terminated by Obamacare’s insurance quality wardens. Forcing them into the market was a key piece of the revenue pie for the Affordable Care Act. No more.
Many understood that the re-engineering of healthcare services and delivery by Obamacare could never be executed and implemented in one swift motion. The law was always going to be implemented in part, ignored in part, with its intended Anaconda hold on the healthcare market proceeding in stages. What I don’t think anyone predicted was how much the politicos in the Obama administration would bob and weave to avoid imposing the law’s pain. As the waivers have mounted, what we are seeing is an unwillingness to enforce the law’s key provisions to any real degree.
Everyone knows that the individual mandate and the company mandate are crucial to Obamacare’s operation. So it is unlikely the bobbing and weaving will go on forever. Wiser heads (a relative term when it comes to putting health care under federal management) will at some point prevail. Thinking ahead, as the government moves to enforce the key provisions, are there blocking measure available that have not been considered?
I can think of one – a common law doctrine, called the non-user rule – that at least deserves mention in this context. It’s probably unlikely this doctrine would be raised – the case law is lacking – and a judge would have to rule under a broad notion of judicial duty that non enforcement of the law has made its application one that is outside the bounds of reasonableness, with a likely constitutional hook being the due process clause. This would involve judges finding that laws seldom or never applied, and applied according to no discernible rationale are dead letters. However, the courts have clearly taken us beyond the written text of the Constitution, making this country, in divers ways, an extra-constitutional regime. Are we not led, therefore, to return to the common law, and the sources it once provided to us, for the legal enforcement of our liberties? So hear me out, or rather listen to some of the best common law jurists on the non-user doctrine as applied to public officers and statutes.
Time was when the British Parliament declared that it held the attributes of sovereignty and was no longer limited by the rule in Bonham’s Case (1610), to wit: legislation passed by Parliament is not higher than the common-law rulings of judges, and a statute that contradicts “common right and reason” is void. But all good things come to an end, and so too did Sir Edward Coke’s attempt in Bonham to develop a fundamental law that would bind both Crown and Parliament.
Legal historian Theodore Plucknett observes that Coke’s attempt at enshrining rule of law was abandoned by the record of subsequent events that “proved there were no legal limitations upon the powers of Parliament.” These events included “The establishment of the Reformation settlement and of new forms of religion, changes in the succession to the Crown, and extremely radical legislation (much of it in the reign of Henry VIII), finally convinced lawyers, in their own picturesque phrase, that Parliament could do anything except make a man a woman.” And this, of course, became one of the principle causes of the American Revolution as the Americans refused to accept the Declaratory Act of 1766 which asserted that the Parliament possessed “full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.”
Fortunately, even as the rule under and through law was abandoned here, seeds of the discarded doctrine emerged in a different doctrine and, perhaps, even in a new country. Plucknett notes the close reading Coke’s decisions received by colonial lawyers in North America, which served to prepare the way for judicial review in America. However, in Britain the new doctrine that emerged was the non-user rule, which had most often been applied to the non-use of various private property rights and easements by extinguishing rights in the non-user after a period of time of neglect. Applied to public officers, Coke announces in his First Institutes of the Lawes of England, Section 233(a) that the “non-user of publique offices which concern the administration of justice, or the common-wealth, is of itself a cause of forfeiture.” William Blackstone lists in his Commentaries that “Every public officer is required to use his office for the public good; a non-user of a public office is therefore a sufficient cause of forfeiture.”
English judges would not accept the proposition that the mere lapse of time could render a statute obsolete. Plucknett notes the royal prerogative included the maxim “time does not run against the King.” Non-user doctrine, therefore, applied to a law that had never been enforced. Thus did the judiciary regain its veto over acts of Parliament that it had lost with the sad end of the rule in Bonham’s Case. As Plucknett underscores, this was not judicial extravagance or the announcement of a seldom used rule. Non-user doctrine can be found consistently applied over a period of more than 5 centuries. The first example was a case in 1287 that held the enforcement of a right under a rule from the Crown will not be mandated by the court when the statute in question had never been enforced. The court would not give application to a rule that had been left silent by the Crown.
Subsequently, we find a line of decisions that stretched to 1823 upholding the non-user doctrine. Plucknett discerns that while no theoretical commentary or principle is offered to justify the rule in these cases, what seems clear is that judges utilized the non-user doctrine “to frustrate legislation which they considered undesirable.” In the final case citing the rule, the judge seemingly repaired to the rule in Bonham’s Case as justification for the doctrine in nullifying a statute that was “repugnant to common right.” Putting this together, we might have non-enforcement + change in circumstances rendering the rule unreasonable, repugnant to common right, or untoward consequences from its application, or some combination thereof.
Is this not applicable in some way to our situation under Obamacare? That is, if the executive agencies have declined to enforce their rights under the legislation, thus abdicating their public responsibilities, so-called, then why should a Court provide any application of the statute against a plaintiff who challenges the law.
Americans now find a statute enforced, at best, unevenly, with its key provisions sheathed in the executive scabbard. The President has left the key pieces of his namesake legislation unenforced precisely because of the chaos in the lives of persons and companies that would follow from their application. As the earlier referenced Journal report analyzed, “Keeping its mandate waiver secret for now is an attempt to get past November and in the meantime sign up as many people as possible for government-subsidized health care.” So Josh Blackman in this space said we have “Government by Blog Post.” Or is it something else, namely, a government that rules by indirection, stealth, and refuses to embrace its public responsibilities? In short, it has become a “non-user of a public office.” The venerable Coke would understand.
Maybe those who were unwilling to challenge Obamacare in its embryonic stages, yes, insurance executives I’m looking at you, should have the last word here. Quoting from the Journal, “Our sources in the insurance industry are worried the regulatory loophole sets a mandate non-enforcement precedent, and they’re probably right. The longer it is not enforced, the less likely any President will enforce it.” May it be so. However, as Karl Llewellyn used to sing, we’ve got the common law tradition, and that tradition provides the non-user doctrine. Might we recover its grand nobility in this case.
 Theodore F. T. Plucknett, A Concise History of the Common Law (Liberty Fund, 2010), original publication date 1929. 337.
 William Blackstone and St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and the Laws, of the Federal Government of the United States, and the Commonwealth of the State of Virginia, (The Lawbook Exchange, 1996): Volume I, Chapter 10 “Of Estates Upon Condition,” 152-3.
A Concise History of the Common Law, 338.
 Ibid., 339.