North of 60 Mining News - The mining newspaper for Alaska and Canada's North

"Do you hear the people sing? Singing a song of angry men?

It is the music of a people who will not be slaves again!

When the beating of your heart echoes the beating of the drums

There is a life about to start when tomorrow comes!"

- The People's Song, Les Misérables

Perhaps it is premature to foster hope for revolution; however, it has long been my view that, in the wonderful world of political "science" (as if there is a science to politics), left and right are not a lineal array.

Instead, it is but a circle in which ultimately the extreme ends actually connect.

There are certain things upon which many of us can agree.

For instance the Administrative Procedures Act, especially as interpreted by the U. S. Supreme Court in "Chevron v. NRDC", has become a behemoth of bureaucracy under which the agencies of the United States are essentially the arbiters of their own mandate - ultimately fiefdoms of arbitrary action over which neither the Congress nor the courts have any say.

The Internal Revenue Code is but a shopworn example of inconsistency and injustice.

Moving closer to home, the Federal Land Planning and Management Act of 1974, has universally demonstrated that, in the war between "planning" and "management," planning has triumphed; and the BLM no longer manages the public domain. Of course, the Environmental Protection Agency, under the auspices of the Clean Air Act and the Clean Water Act, has elected to become the principal zoning office for the nation: witness its proposed definition of "waters of the United States" which attempts to reach to the mountaintops, or perhaps the clouds, to ensure that anything that is wet, ever has been wet or ever will be wet is duly regulated.

Congressional acts that try to push back are blocked before implementation, or interpreted by the administrating agency to mean something new and different, or vitiated by the courts out of deference. Where a judge musters the courage to point in a different direction, there is a reviewing court to set the miscreant straight.

No better example of this travesty is the zig-zag pattern of resource development in Alaska. Alaska statehood, in no small part, occurred because, although our population was small, our resources were unbounded. Fish, timber, coal, copper, gold and oil were and are profuse. The Kennecott Copper mine did not diminish the Copper River salmon run; the trans-Alaska pipeline did not scare the caribou away; the timber harvest in Southeast Alaska did not render the spotted owl extinct - quite the contrary.

Nonetheless, when the Great Compromise - the Alaska National Interest Lands Conservation Act - was adopted and turned over to the U. S. Department of the Interior and the U. S. Forest Service to administer, the spirit and express intent of the law was sublimated.

Access to inholdings was consistently constrained by the National Park Service with the willing acquiescence of the federal courts.

Public health and safety were put at risk by decisions of the U. S. Fish and Wildlife Service.

Areas of Critical Environmental Concern were manufactured out of whole cloth for vast regions.

The whole concept of "No More", which was central to the "Compromise" has been vitiated and is at risk of being totally scuttled.

Yet, out of a surprising quarter, there is a glimmer of hope. In the earliest stages of the incumbent administration, Congress, behind closed doors and in total disregard of the legislative process, forced through the so-called "Affordable Care Act." Without going into the merits and demerits of this monstrosity, its enactment and implementation are truly a tribute to the tenacity of America's left-leaners. Despite its ridiculous language, this statute has made it to the U.S. Supreme Court twice so far, and twice the High Court, led by Chief Justice John Roberts, has moved heaven and earth to find it "constitutional."

In the first instance, the court ruled that the provisions which compelled sanctions against those who felt that buying health insurance they neither wanted nor needed was not a penalty but a "tax." Accordingly, compliance was mandatory. That decision is obviously aberrant in innumerable ways. (If it's a tax, how come it didn't originate in the House of Representatives where appropriation bills are constitutionally required to be initiated?) Nonetheless, a challenge to that interpretation has yet to float to the surface.

More recently, however, in "King v. Burwell," Roberts has outdone himself.

In 21 pages of rhetorical machination, his "vorpal blade" has clear-cut a path through 230 years of judicial interpretation, to conclude that the "words" of a statute don't matter nearly as much as the intent of the lawmakers.

Since, according to Roberts, Congress could not have meant what it said, despite Chevron and a dozen other canons of judicial interpretation, deference to the language of the law is not required.

What we must now do is read the enactment as a whole to divine what Congress sought to accomplish.

When I went to law school, one of the professors was fond of quoting Supreme Court Justice Oliver Wendell Holmes Jr., who said (among many other insightful things) "<a> word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."

Perhaps I am reading too much into the King decision, but the beating of my heart echoes the beating of the drums of revolution.