March 26, 2014

"Obama Administration Suffers A Drubbing In Hobby Lobby Arguments."

That's the headline at Forbes, reminding me to get back to the transcript, which I half read yesterday. Here's my post, which covers the argument for Hobby Lobby by Paul Clement and ends without getting to Solicitor General Donald Verrilli's argument against the religious exemption the company seeks.

Verrilli begins ponderously and the Chief Justice scampers right in to trip him up:
GENERAL VERRILLI: The touchstone for resolving this case is the principle Justice Jackson articulated in Prince v. Massachusetts. As he said, "Limitations which of necessity bound religious freedom begin to operate whenever activities begin to affect or collide with the liberties of others or of the public. Adherence to that principle is what makes possible the harmonious functioning of a society like ours, in which people of every faith live and work side by side."*

CHIEF JUSTICE ROBERTS: That's a statement that is inconsistent with RFRA, isn't it? The whole point of RFRA is that Congress wanted to provide exceptions for the religious views of particular ­­ including proprietors, individuals.

GENERAL VERRILLI: No, Mr. Chief Justice, I don't think so at all. In fact, the ­­ although I was ­­ of course, I was referring to Justice Jackson's words for their wisdom because it wasn't the opinion of the Court. But see, Jackson ­­

CHIEF JUSTICE ROBERTS: Yeah. But the wisdom you cited is the idea that you don't have imposed, on the basis of religious beliefs, exemptions or ­­ or limitations. And it seems to me that was the whole point of RFRA, to tell the courts that that is exactly what you should do unless the exception satisfies the strict scrutiny test.
Verrilli is resting heavily on a presumed reverence for Justice Jackson, but obviously the point is what was Congress doing with the Religious Freedom Restoration Act? The Prince case upheld a statutory ban on child labor, where the child's parent argued that she had a constitutional right to use her child to sell religious literature. But in the Hobby Lobby case, the statutory law in question is RFRA, and the legislative policy is to give religious exemptions.

Anyway, why begin with dredging up an old Jackson quote?! Roberts is right to drag Verrilli into the present conflict, which is about a federal statute — RFRA — and some HHS regulations under another federal statute, the ACA.

Verrilli rebalances, stressing the importance of understanding RFRA in terms of the problem of the effect of exemptions on third parties. In other words, the statutory entitlement to exemptions should be seen as having a limiting principle excluding exemptions that come at the cost of burdening other people, like the women who work for Hobby Lobby.

Scalia asks where you get that limiting principle in the text of RFRA: "Is — ­­is that part of the compelling State interest requirement or ­­ or substantial burden requirement? Where — where is it in RFRA?"

Verrilli says he'd like to think his limiting principles "could inform every operative provision in RFRA," which is to say he wants the Court to read the principle into the text. But why?

No one asks that question, and Justice Alito jumps in with a whole new topic, the question whether RFRA applies to for-profit corporations. RFRA says nothing about excluding for-profit corporations, and Verrilli must deny that it excludes corporations (because "obviously, churches can bring claims").

Alito observes that individuals have been able to raise claims for exemptions when they're engaged in for-profit activities, so if it's not the corporate form per se and it's not the profit-seeking per se, why is the combination of the two a reason to see the for-profit corporation as excluded from the coverage of a statute (a statute that has nothing in its text about this exclusion)?

Scalia pressures Verrilli to admit that "There is not a single case which says that a for­-profit enterprise cannot make a freedom of religion claim, is there?" (Scalia is referring to all the constitutional Free Exercise cases as well as the RFRA cases, because RFRA expressed the legislative intent to restore the kind of religious exemptions analysis that the Supreme Court seemed to be using before a case — Smith — that said the Free Exercise clause doesn't require exemptions from neutral, generally applicable laws.)

Verrilli must concede that there are no cases that say that a for­-profit enterprise cannot even make a claim. There are cases where the interest in making more of a profit is seen as insubstantial as the court reaches the question on the merits, and Kagan disciplines Verrilli for attempting to fudge here. She says: "I totally understand that argument as a ­­— as an argument about the merits. I'm not sure I understand it as a threshold claim that — this ­­ that the claim is not recognizable at all."

Verrilli says "Right" and almost drops the argument, saying he wants to move to another issue, but then he turns back and tries to salvage it, this time stressing how it will be hard to draw distinctions when "a large corporation comes in or a public company comes in" and "you will have more grounds to question the sincerity" of the claim of religion. That is, why not take the opportunity to draw a line in this clear place and say that for-profit corporations never have the kind of religious beliefs that RFRA protects? Roberts says it would also be easy to draw a line at closely held corporations, so he's not buying the notion that this is the Court's last chance to draw a clear line, even assuming the Court is inclined to put a gloss on RFRA that would enable the courts to avoid difficult case-by-case decisionmaking about religious sincerity.

Verrilli turns to the subject of whether the government has a compelling interest in requiring these companies to include contraceptive coverage if they provide health insurance to their employees. Justice Kennedy focuses him this way: "Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?" And daringly: "Does that mean the constitutionality of the whole Act has to be examined before we accept your view?" Whoa!

Verrilli jokes — "Well, I think it has been examined, Your Honor, is my recollection" — and gets a laugh. But this is no joke, and Kennedy has a lot in mind. He continues:
Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of —­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.
This is extremely important. The topic finally becomes the role of HHS, which is making the decisions here, not Congress, and Kennedy is disturbed by the agency making some but not other exemptions. This is a problem quite apart from the RFRA claim for an exemption. There is something structurally awry about this lawmaking.

Kennedy observes that the agency's exemptions were given "without reference to the policies of RFRA." So "what were the policies that you were implementing?" Churches got exemptions, and businesses with less than 50 employees got exemptions, and then there were the grandfathered plans. How do you argue a compelling interest in no exemptions when the government has made all those exemptions? Roberts badgers Verrilli about how long the grandfathered plans are going to stay grandfathered.

Justice Breyer brings up the idea that if the government really does have a compelling interest in covering contraceptive care, it could just pay for that care directly when the exemption is needed. That is, RFRA requires the government, when it is substantially burdening religion and when it does have a compelling interest, to use the least restrictive means of serving that interest. Breyer wants Verrilli's "precise answer to that kind of argument," and when Verrilli starts off saying that opposing counsel brought up that idea "for the first time at the podium this morning," Breyer slaps him down: "I'm not interested in whether they made the argument sooner or later." He wants what he said he wants. Don't waste his time!

Verrilli says the government only has the burden to show that a less restrictive alternative is not equally effective if the alternative has been proposed. Maybe this shouldn't count as having been proposed. Verrilli says that and a bit  more, but I don't think he steps up to Breyer's demand that he give a "precise answer." He mostly talks about how expensive it might be for the government to pay for birth control.

At page 74 of the transcript, Chief Justice Roberts finally brings up the issue that I believe matters the most. If there's really a compelling government interest here, why didn't Congress put an exemption from RFRA in the text of the ACA? Verrilli has no answer at all. I think this point is crushing, especially since RFRA is a statute and the contraceptive requirement comes from the agency. I bet Congress could not muster the political will to deprive religious constituents of their exemptions, and I don't think the Supreme Court should do this work for them. It's anti-democratic. It's lawmaking gone structurally awry. This connects to Justice Kennedy's "what ­­ what kind of constitutional structure do we have...?" problem, above, that I called "extremely important."

Speaking of Justice Kennedy, he comes in at this point with a painful hypothetical:
Under your view, a profit corporation could be forced —­­ in principle, there are some statutes on the books now which would prevent it, but ­­— could be forced in principle to pay for abortions.
Verrilli tries to evade the hypothetical by saying that current law doesn't require paying for abortions. But that lights up Roberts, who points out that from the perspective of the religious believers in this case, the objectionable contraceptives are abortifacients. So Kennedy's hypothetical is left behind, and we're hearing about the divergent beliefs about whether a particular contraceptive — the IUD — works through something we ought to call "abortion." Verrilli says:
[W]e've got about 2 million women who rely on the IUD as a method of birth control in this country. I don't think they think they are engaged in abortion in doing that. It is their belief. It's sincere. We respect it.
I don't see how that answers the question. Women using an IUD may believe it's not doing something they think of as abortion, but the issue isn't about whether they're entitled to act on their beliefs (either that it's not abortion or that abortion is acceptable). It's about whether the for-profit corporation is entitled under RFRA to disconnect itself from involvement in something that it believes is abortion. Both beliefs can be sincere and both can be simultaneously respected.

There's a bit more to Verrilli's argument, but I think things have petered out by this point. Alito pushes him about for-profit slaughterhouses that might be banned — for the humane treatment of animals — to refrain from following the kosher and halal slaughter methods, but this is more of what we saw earlier, and I think it's rather obvious that the Court is not going to exclude for-profit corporations from RFRA coverage.

I think Hobby Lobby will win this case, because Congress passed RFRA, and it's a system of judge-made exemptions. I thought the strongest argument for the government was to say that there isn't a substantial burden, but there was very little talk about that. Mostly, Verrilli persevered insisting on the compelling interest, which was quite hard to see at all, and resisting the need to meet the requirement of least restrictive alternative. The Court could write a super-short opinion here, but I don't think it will. If they go long — when they go long — I hope the detail has to do with the dynamics of lawmaking, what Congress did and what it did not do in its 2 statutes, RFRA and the ACA. I'd like to see Congress's feet held to the fire on this mess it has created for the people and for the courts. Some serious discipline is in order.

___________________________________

* The quote marks are wrong in the transcript. The sentence that begins with "Adherence" is not part of the Jackson quote. And the sentence that begins with "Limitations" combines 2 sentences: "Our basic difference seems to be as to the method of establishing limitations which of necessity bound religious freedom. My own view may be shortly put: I think the limits begin to operate whenever activities begin to affect or collide with liberties of others or of the public." It should be noted that Jackson is writing a separate opinion and disagreeing with principle used by the majority. 

117 comments:

Drago said...

AA: "There is something structurally awry about this lawmaking."

Ya think?

Drago said...

BTW, I really appreciated the concise recap of the arguments made and Ann's on point observations.

chrisnavin.com said...

Thanks Ann.

We need to start the War On Drubs.

rhhardin said...

Richard Epstein audio last month on these cases.

He has a principle to straighten it all out.

MadisonMan said...

IANAL.

Is it normally the case that the side that gets drubbed in oral arguments will lose?

YoungHegelian said...

Thank you, Professor, for the learned analysis.

I actually feel sorry for counsel who have to appear before the Supreme Court. You prepare for your presentation before the highest court in the land to within an inch of your life, get up to the podium, get one sentence out & ---- BLAM --- nine Justices start tearing you a new one, interrupting helter-skelter as they please. It must simply be a maddening experience for the lawyers on both sides.

mccullough said...

I disagree that the substantial burden issue wasn't addressed much. Kagan harped on the point that the company could just pay a $2,000 tax/penalty per employee and not provide any health insurance. Since this amount is less than a company would pay in premiums, Kagan says the company would come out ahead. So any burden is self imposed.

Roberts chimed in that the company's religious beliefs motivate them to provide insurance, so it's not really an answer to say that they can just not provide the insurance.

Clement said that they would have to raise salary/wages to offset the loss of health insurance benefits, but couldn't say if the burden of paying increased wages plus the $2,000 penalty wold exceed the cost of premiums. It seems like it would.

Ann Althouse said...

I think the Forbes headline writer used the word "drubbing," because of the repeating sets of double b's: Drubbing... Hobby Lobby...

It just looks nice....

Carol said...

Thank God for the rule of law. Lenin would have dispatched this issue much more expediently.

Tank said...

YoungHegelian said...
Thank you, Professor, for the learned analysis.

I actually feel sorry for counsel who have to appear before the Supreme Court. You prepare for your presentation before the highest court in the land to within an inch of your life, get up to the podium, get one sentence out & ---- BLAM --- nine Justices start tearing you a new one, interrupting helter-skelter as they please. It must simply be a maddening experience for the lawyers on both sides.


If you're well prepared, and good at this sort of thing, you use the questions to make the points you wanted to make anyway. What the attorneys plan to say is (I hope) in their briefs. Oral argument is the time to go beyond that. Actually, I think most oral argument is a waste of time (not limited to the Supreme Court).

jacksonjay said...

Sounds like Babbling Barry needs to make a speech. Get Johnny's mind right!

JRH, esq. said...

A quality and substantive post, thanks for taking the time.

Levi Starks said...

A drubbing, yes.
But was the drubbing so severe as to force the majority (or the swing vote) to issue a rule based on law?
We already know how how Kagan, Sotomayer, and Ginsberg will vote.

mccullough said...

I'm not impressed by Alito or Sotomayor. They are the weak links at the court both in their opinions and at oral argument.

NotquiteunBuckley said...

“I thought – I thought that part of the religious commitment of the owners was to provide health care for its employees,” Roberts said and Clements agreed.

“Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange,” Sotomayor said. - cns news Penny Star.

Duh Hobby Lobby! Why didn't you just ask Justice Sotomayor before? She get you the help you need, you just go ahead and call her aight.

Drago said...

mccullough said...
I'm not impressed by Alito or Sotomayor. They are the weak links at the court both in their opinions and at oral argument

Possibly.

However, only 1 of them is spring-loaded to basically rewrite the constitution to reflect a "new liberal reality".

Just think: a couple of more appointments/changes on the court the and the left can rewrite every and anything they care to.

Just think about the SG's argument and think about the fact that with just a couple more seats being warmed by "wise latina's" or other favored leftist jurists, the SG's argument would be an outright winner.

Going in.

We're not that far away from that.

It will almost certainly happen within my lifetime.

And then, what's left of this republican experiment will be officially over.

I've gone a bit "Whitaker Chambers" on that point.

Until then of course, we fight the good fight.

Alexander said...

No, no, no. Fool me once, shame on me. But twice?

Obama got drubbed in the first round... and then Kennedy decided that it was a tax even though it wasn't a tax (but we all knew it was) and commerce ergo presto abracadabra Obamacare is perfectly fine.

The judges will do what they want to do - that's what the penumbras and emanations are for.

rhhardin said...

Mark Steyn attributes American reverence for judges to America not having a monarch.

Alexander said...

I realize that should be fool me once, shame on you... but frankly, reality works more in line with my typo, so heh.

Curious George said...

So female Hobby Lobby employees will start spitting out kids like Crack pulls out the race card, right?

Thanks Supreme Court.

cubanbob said...

CHIEF JUSTICE ROBERTS: That's a statement that is inconsistent with RFRA, isn't it? The whole point of RFRA is that Congress wanted to provide exceptions for the religious views of particular ­­ including proprietors, individuals."

Just as Robert's admonished the electorate that elections have consequences he should admonish the Congress and the President by admonishing them to read bills before passing them.

What I don't understand is the presumption in the questioning that birth control is a medical necessity since pregnancy in of itself isn't a disease.

While I agree with Ann (and she is a law professor and I am just a nobody commenting on a blog) that Congress was too clever by half by not specifically excluding the ACA from the RFRA and Hobby Lobby will win if the questions asked by some of the judges indicates how they will rule there is a possibility of a results orientated decision.

Lyssa said...

Young H said: You prepare for your presentation before the highest court in the land to within an inch of your life, get up to the podium, get one sentence out & ---- BLAM --- nine Justices start tearing you a new one, interrupting helter-skelter as they please. It must simply be a maddening experience for the lawyers on both sides.

We did mock SCOTUS arguments for a class in law school, and it was extremely frustrating for just that reason. Gave me a whole new respect for Justice Thomas's restraint.

Ignorance is Bliss said...

Alexander said...

Obama got drubbed in the first round... and then Kennedy decided that it was a tax...

Actually it was Roberts that decided it was a tax.

Alexander said...

Derp, I knew that. Thanks, Ignorance, you're right.

madisonfella said...

Hope Hobby Lobby wins the case, because then no laws at all will ever have to be followed. Just say "it is my religion" and it'll be a free pass for anything and everyone.

The Tea Party's dream is almost upon us: "Dum Vivunt in Anarchiam!"

cubanbob said...

Blogger mccullough said...
I disagree that the substantial burden issue wasn't addressed much. Kagan harped on the point that the company could just pay a $2,000 tax/penalty per employee and not provide any health insurance. Since this amount is less than a company would pay in premiums, Kagan says the company would come out ahead. So any burden is self imposed. "

Never mind the arrogance of Justice Kagan for making that statement if she actually thought it through if Hobby Lobby were to pay the penalty- a tax on it's religious views- and not provide the salary bump the employees of the company would be worse off than the having an employer provided plan that covers what they really need-illness and injury indemnification and not life style control. Clement is equally foolish in his remark since does anyone really expect an employer to pay a penalty of $2,000 which isn't an expense and would cost the employer $2,700 and then pay the employee a bump equal to the previous employer per employee cost of a health policy which would also subject the employer to an additional FICA tax?

Perhaps Kagan should follow her own logic and consider what would happen if a large number of employers or a slight majority of employers were to take her advice and pay the penalty and drop the coverage.

cubanbob said...

madisonfella said...
Hope Hobby Lobby wins the case, because then no laws at all will ever have to be followed. Just say "it is my religion" and it'll be a free pass for anything and everyone."

Why not? This Administration already behaves that why with the delays and waivers.

SteveR said...

Just goes to show how F'up this whole ACA legislation was. Couldn't have worked out a way to avoid this by talking about in the rule making process. Nope just cram it through in the dark of night loaded with all these legal uncertainties.

Alexander said...

As does the department of justice. At this point 'not following any laws' is more like 'leveling the playing field'.

And we're all about equality and fairness, right?

Strelnikov said...

That was the gist of the headlines after the first case.

Strelnikov said...

"You prepare for your presentation before the highest court in the land to within an inch of your life, get up to the podium, get one sentence out & ---- BLAM --- nine Justices start tearing you a new one, interrupting helter-skelter as they please."

That's the fun part.

Dust Bunny Queen said...

Kagan harped on the point that the company could just pay a $2,000 tax/penalty per employee and not provide any health insurance. Since this amount is less than a company would pay in premiums, Kagan says the company would come out ahead. So any burden is self imposed. "

Hobby Lobby should so totally do this. They would save themselves hundreds and hundreds of thousands of dollars a year by throwing their employees off of a group plan and paying the penalty/tax/fee/extortion/whatever.

There is no way that they could 'bump' employee salary at the same time enough to actually give them enough to buy individual insurance, especially the older people. As pointed out, the cost of paying the penalty and paying an increase in salary, along with all the other expenses that go along with salary (FICA, retirement plans etc) would be cost prohibitive.

Hobby Lobby would likely not just throw their employees to the wolves as they are a company with morals. Morals about abortificants which is why they are in Court the first place.

Richard Dolan said...

Nothing to add to Ann's analysis, or her prediction that Hobby Lobby is likely to win this case.

Looking at the issues from a slightly broader perspective, the Obama Admin has consistently had trouble in a string of cases at the SCOTUS involving the concept of diversity on display in this case. The RFRA is all about respecting religious differences and beliefs; Team Obama is all about mandated uniformity overriding those differences. The same approach shows up in many institutions where teh group in control exhibits the same lefty mindset as Team Obama. You see it all the time in university settings, where dissenting viewpoints on matters of lefty faith (e.g., race, gender, sexuality, climate, Palestine, etc.) are squelched in various ways.

What is it about lefties that makes them hate these forms of diversity of belief and viewpoint, even as they constantly harp on other forms of diversity as a primary value?

Real American said...

if your choices are (1) violate your religious beliefs or (2) pay a tax or fine, that is a substantial burden on the free exercise of religion.

B said...

I just feel bad for Verrelli. He looks terrible every time oral arguments get the spotlight.

Jack Wayne said...

What SCOTUS should do is declare RFRA unconstitutional and then find Hobby Lobby has the right to modify Obamacare under the 9th or 10th amendment.

Neighborhood Retail Alliance said...

AA's comment about the law versus the agency's rule making is on point. Let's not forget that Cong. Stupak was promised (with crossed fingers) that the ACA would not facilitate abortion. Congress got the Blue Dogs by lying and then simply added the mandate into subsequent regulations. If there had been honesty on this mandate, it is likely that the ACA would not have passed

sunsong said...

I am sympathetic with Hobby Lobby in this. I think they have shown themselves to be sincere and virtuous as they claim.

Todd said...

madisonfella said...
Hope Hobby Lobby wins the case, because then no laws at all will ever have to be followed. Just say "it is my religion" and it'll be a free pass for anything and everyone.

The Tea Party's dream is almost upon us: "Dum Vivunt in Anarchiam!"

3/26/14, 11:17 AM


Except not. The Tea Party platform says nothing about Religion or lawlessness. They just want a smaller, more fiscally restrained government but you likely already knew that and just could not help but be a horse's ass.

Mike said...



March 25: Final enrollment deadline extended. The March 31 deadline — the end of enrollment for 2014 — will be loosened for people with special sign-up circumstances.

March 14: High risk pools extended. The special, temporary coverage for people with serious pre-existing conditions — which was only supposed to last until the health insurance exchanges were in place — was extended a third time for another month.

Feb. 10: Employer mandate delayed. This time, businesses with between 50 and 100 workers were given until 2016 to offer coverage, and the mandate will be phased in for employers with more than 100 workers.

Jan. 14: High risk pools extended. The high-risk insurance pools, which originally had been slated to close Jan. 1, had already been extended once.

Dec. 24: Enrollment deadline extended. In a message on HealthCare.gov, customers were told they could get help finishing their Jan. 1 applications if they were already in line on Dec. 24.

Dec 12: Enrollment deadline extended. Customers on the federal enrollment website were given nearly two more weeks to sign up for coverage effective Jan. 1.

Nov. 27: SHOP delayed. Online enrollment for the federal health insurance exchanges for small businesses was delayed.

Nov. 21: Open enrollment delayed for 2015. The administration pushed back next year’s enrollment season by a month.

July 2: Employer mandate delayed. The administration declared that it wouldn’t enforce the fines in 2014 for businesses with more than 50 full-time workers who don’t offer health coverage. The fines were pushed back to 2015.

Nov. 15, 2012: Exchange deadline delayed. The Department of Health and Human Services gave states an extra month to decide whether they would set up their own health insurance exchanges — a decision they announced just one day before the original deadline.

Meade said...

Neighborhood Retail Alliance said...
"Let's not forget that Cong. Stupak was promised (with crossed fingers) that the ACA would not facilitate abortion. Congress got the Blue Dogs by lying and then simply added the mandate into subsequent regulations. If there had been honesty on this mandate, it is likely that the ACA would not have passed.

Excellent point.

Paul Zrimsek said...

Since this amount is less than a company would pay in premiums, Kagan says the company would come out ahead.

People with no head for economics shouldn't try to do economics. Pre-ACA, Hobby Lobby was, at best indifferent between (1) providing health insurance (since it voluntarily chose to do that) and (2) not providing health insurance WITHOUT having to pay a fine. Since (2) was no better than (1), and Kagan's bright idea is worse than (2) by the amount of the fine, ACA burdens Hobby Lobby by at least $2000 per employee.

damikesc said...

Hope Hobby Lobby wins the case, because then no laws at all will ever have to be followed. Just say "it is my religion" and it'll be a free pass for anything and everyone.

An argument so myopic in intellect makes it impossible to take anything you say seriously.

Hint: Just because you have freedom of speech doesn't mean the gov't cannot stop you from revealing troop movements during war. No right is absolute.

Why the SCOTUS doesn't just toss the entire law due to the administration refusal to abide by it is lost on me. Giving the President to determine who a tax will impact seems like bad policy.

madisonfella said...

The Tea Party platform says nothing

Of course it doesn't say anything, because anarchists don't have an actual platform.

The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party.

Scott M said...

Of course it doesn't say anything, because anarchists don't have an actual platform.

The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party.


This is a ridiculous statement. The only credence you could possibly give it is that it might seem like the TP is constantly against things, but that's only because of the enormous overreach of this administration.

TP'rs are absolutely for something and that is limited government. Calling them anarchists reveals your lack of understanding of just about everything involved in your sentence. Anarchists want NO government. NO != limited.

n.n said...

If contraception is considered a compelling interest, then neither medical industry reform nor "secure the Blessings of Liberty to ... our Posterity" were the goals of Obamacare. If anything, it preserved and exacerbated progressive inflation, while actively seeking to condemn our Posterity.

It's ironic that the administration's defense relied on a patently false article of faith, specifically the popular myth of spontaneous conception.

Why are they obsessed with population control? Is this an admission of moral corruption, or their own uniquely selfish perspective of human and individual dignity?

cubanbob said...

The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party."

No. They are just opposed to your crap.

jr565 said...

madisonfella wrote:
The Tea Party isn't FOR anything, rather they are AGAINST everything.

Everything as defined by Madisonfella. Which means, things that liberals are for.
If the Tea Party were in charge would you be for their policies? Wouldn't you then be the one opposed to EVERYTHING?

darrenoia said...

Now we just have to wait until June to find out whether the Supreme Court is willing to let America stop being America and throw the first amendment out the window once and for all. With Hosanna-Tabor in recent memory, I'm hoping that this administration will get the smackdown it so richly deserves.

Mr. D said...

The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party.

Actually, Abraham Lincoln explained the differences between his party and the Know-Nothings quite nicely.

Nice try, though.

PB Reader said...

"Congress" didn't create this mess. Democrats did. They need to be held to account for this travesty of a law.

Given there was no severability clause in PPACA, does this render apart of the law unconstitutional and thus the entire law?

madisonfella said...

TP'rs are absolutely for something

You're right, I forgot about Medicare. The Tea Party makes it very clear that they are in favor of that.

n.n said...

The TEA Party represents a grassroot effort which seeks to provide oversight of the overseers. Their invention or innovation is neither, as they desire integrity, responsibility, and accountability of a corporate body which is authorized by the People for limited exploitation of capital and labor.

The government's mandate, one of few, is to "secure the Blessings of Liberty to ourselves and our Posterity". It is not to normalize contraception and it is certainly not to normalize murder/abortion. Our constitution does not authorize government to implement a population control protocol, voluntary or otherwise. While it is an individual right to prevent conception, it is not anyone's legal right to commit murder/abortion without cause or due process. They may do so as a natural prerogative, but it is society and humanity's compelling interest to mitigate or prevent progressive corruption. Women and men need to accept responsibility for their behavior and make better choices.

That said, the federal government is a $4 trillion operation, with nearly $3 trillion in tax receipts, which has been running a trillion dollar deficits since Obama's entry to office. Even then, the so-called "affordable" care reform, is not viable without increasing the total cost and subsidies for medical insurance. And they still have a compelling need to reduce the problem set through normalization of dysfunctional behaviors, including contraception and murder/abortion.

SteveR said...

Of course it doesn't say anything, because anarchists don't have an actual platform.

The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party.


Truly brilliant and original analysis. Thanks for sharing.

n.n said...

Medicare is an entitlement which is backed by productive enterprise (i.e. economic progress). On its own, it does not sponsor corruption, and does not have a compelling interest to reduce the problem set.

Obamacare is a revenue (i.e. tax/penalty) scheme designed to increase welfare and preserve the status quo, which is progressive inflation and corruption, both fiscal and moral.

Obamacare is also a punitive tax/penalty assessed against survivors of planned parenthood.

Archie said...

Thank you Professor for taking the time to lay this out. Very instructive.

Jay said...

madisonfella said...

You're right, I forgot about Medicare. The Tea Party makes it very clear that they are in favor of that.


Hysterical.

It is always funny to watch leftists think that everyone else is a stupid and gullible as they are.

John said...

'what congress did...'

Seems a silly construct. What congress did was pass into law a bill which almost none had read. Is it any wonder the ACA is such a muddled mess? But then, what difference does it make now? This is the new norm.

Jay said...

madisonfella said...
Hope Hobby Lobby wins the case, because then no laws at all will ever have to be followed. Just say "it is my religion" and it'll be a free pass for anything and everyone


Alternatively,

You can simply say "I'm a Democrat" and not follow the law.

See stupid, Obama has unilaterally decided he can "delay" ObamaCare, which has a statutory deadline, and you care not one bit about this.

But hey, what is a little hypocrisy while you're here posting outright lies and Non Sequiturs, right?

MattL said...

It seems to me that the tension between the lawmaking parties (Congress and delegated Executive Agencies) is something that definitely needs some fixing. I seriously doubt that the Court wants to get too much into the middle of that, though, especially when they don't really need to.

It would be refreshing, at least, for the Court to tell the Executive to obey the law (RFRA, in this case). Baby steps, I suppose.

RecChief said...

busy today, so I couldn't read all of Althouse's analysis yet. But a couple of things strike me:

1. At this point, I think liberals really, actually, literally believe that if the employer doesn't pay for the contraception of the employee's choice, then (in liberals' minds) the employer is really, actually, literally denying employees healthcare. Bizarre, but I don't think it is a cynical position designed for political gain. They really do believe it.

2. What is the compelling interest of the state in enforcing this provision when so many other "mandates" have been delayed or those effected have gained exemptions?

cubanbob said...

SteveR said...
Of course it doesn't say anything, because anarchists don't have an actual platform.

The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party.

Truly brilliant and original analysis. Thanks for sharing.

3/26/14, 12:19 PM

Truly brilliant and original analysis? Only if you are a progressive. For ordinary folk possessing a bit of common sense and intelligence there is nothing original or brilliant in that comment. Yes The Taxed Enough Party has a simple view-your problems aren't their obligation to pay higher taxes. However progressives are simply to dim and arrogant to understand such a simple concept.

Paco Wové said...

Sarcasm, CBob. Sarcasm.

n.n said...

darrenoia:

It's not just survival of the First Amendment which is in jeopardy. This administration's demonstration of a compelling interest to normalize population control methods is, in fact, contrary to both the spirit and letter of the constitution. They are not only creating a moral hazard but promoting a constitutional crisis. This is in addition to their selective legal positions.

RecChief said...

It seems to me that the tension between the lawmaking parties (Congress and delegated Executive Agencies) is something that definitely needs some fixing. I seriously doubt that the Court wants to get too much into the middle of that, though, especially when they don't really need to."

The high court could fix a lot of that by denying cert for a number of cases, and cite the relevant section of the Constitution with the following admonition:

"The Constitution is already clear on the duties of each branch of government. Stop bending yourself into a pretzel to read something into it that isn't there."

Wilbur said...

"You prepare for your presentation before the highest court in the land to within an inch of your life, get up to the podium, get one sentence out & ---- BLAM --- nine Justices start tearing you a new one, interrupting helter-skelter as they please. It must simply be a maddening experience for the lawyers on both sides."

An appellate oral argument makes you feel exhilarated; it is the most lawyerly thing lawyers do.

The secret is to prepare. Know your case and your opponents case better than anyone in the room. Anticipate objections and skepticisms about your argument, and prepare to answer and counter them.

Don't dread the experience, look forward to it.

n.n said...

RecChief:

First, "liberals", especially of the generational or progressive variety, and, unfortunately, many libertarians, are predominantly libertine. Second, they believe and take comfort in the myth of spontaneous conception. So, in their minds, a clump of cells (aka "human being"), throughout its evolution, only has a selective value. They place concerns of money, sex, and ego before all others.

The state's interest is two-fold: revenue and population control. The Democrat's interest is specifically democratic leverage, which requires them to hold principles which are mutually irreconcilable.

TennLion said...

Not only did Congress not exempt PPACA from RFRA, Bart Stupack thought he had an explicit promise from the Administration that these kind of regulations would not be imposed. He now feels betrayed. (Welcome to the club.)

Anthony said...

cubanbob:

"What I don't understand is the presumption in the questioning that birth control is a medical necessity since pregnancy in of itself isn't a disease."

Medical necessity doesn't matter if the text of the PPACA specifically requires something. If the law required funding for facelifts for Senators, it doesn't matter whether that's a medical, or merely aesthetic, necessity. I believe the PPACA specifically requires provision of free birth control, as opposed to assuming it's "medically necessary".

Drago said...

TennLion: " Bart Stupack thought he had an explicit promise from the Administration that these kind of regulations would not be imposed. He now feels betrayed. (Welcome to the club.)"

Anyone who thinks Stupak was fooled and didn't know what was really going to happen is kidding themselves.

Stupak sold out.

Knowingly.

And he lied to everyone about it.

He's no victim.

He's an enabler of victimizers.

Rusty said...

madisonfella said...
TP'rs are absolutely for something

"You're right, I forgot about Medicare. The Tea Party makes it very clear that they are in favor of that."

Have you met garage mahal? You two have a lot in common.


Ignorance is Bliss said...

Anthony said...

Medical necessity doesn't matter if the text of the PPACA specifically requires something.
...
I believe the PPACA specifically requires provision of free birth control, as opposed to assuming it's "medically necessary".


The text of the PPACA did not require it. It authorized the Secretary of HHS to write regulations specifying minimum requirements, and HHS came up with the contraception mandate.

Birkel said...

Rusty:

garage mahal = madisonfella

Nobody can know they're two separate accounts run by the same individual, or not. But it's easier to acknowledge they are the same person.

Ignorance is Bliss said...

PB Reader said...

Given there was no severability clause in PPACA, does this render apart of the law unconstitutional and thus the entire law?

Only if the court went very, very deep into the woods, and said the entire scheme of delegating so much regulatory authority to the HHS was unconstitutional. That would also gut an alphabet soup of government agencies.

They will not say the the PPACA is unconstitutional, constitutionality was never at issue.
They will rule that a specific regulation ( the contraceptive mandate ) violates an existing law ( the RFRA ), and that regulation will be overturned.

You might get a concurring opinion raising issue with the delegation of lawmaking authority, but I'd be surprised.

Ignorance is Bliss said...

P.S. I am not a lawyer, but I play one on the internet.

Sofa King said...


Medical necessity doesn't matter if the text of the PPACA specifically requires something. If the law required funding for facelifts for Senators, it doesn't matter whether that's a medical, or merely aesthetic, necessity. I believe the PPACA specifically requires provision of free birth control, as opposed to assuming it's "medically necessary".


Are you sure about this? I am under the impression that this is a detail actually crafted by HHS. That jibes with AA's sense that the explicit statutes of Congress have to override the delegated rulemaking that comes out of agencies.

damikesc said...

What CONGRESSIONAL DEMOCRATS did was pass into law a bill which almost none had read

FTFY.

Let's keep the blame where it belongs.

Bart Stupack thought he had an explicit promise from the Administration that these kind of regulations would not be imposed.

Note: Every critic said he was had when he made the choice in the first place.

I believe the PPACA specifically requires provision of free birth control, as opposed to assuming it's "medically necessary".

Pretty sure it doesn't say that. Pretty sure it's an HHS regulation.

Meade said...

And recall: the Stupak(D)/Obama(D) deal (Stupak's vote for Obama's executive order) was strongly and equally opposed by both pro-life and pro-choice groups.

Brennan said...

I thought Justices Kagan and Sotomayor maid a very good case for divorcing health insurance for the employee that is tied to their employer.

What business is it of the employer about what insurance I want to select for myself? Pay me for my services and I will bargain for my own insurance plan that covers what I want covered. The insurer will bill me for how much coverage I wish.

Brennan said...

And recall: the Stupak(D)/Obama(D) deal (Stupak's vote for Obama's executive order) was strongly and equally opposed by both pro-life and pro-choice groups.

I was there. The Stupak flip was devastating. The legal counsel provided to members was an executive order was not enough. It was a lesson learned from the negotiations between President Reagan, Speaker O'Neill and Congressman Henry Hyde for a previous exception. It required a federal statute. The counsel was ignored by Mr. Stupak.

He acted stupackly.

MattL said...

What business is it of the employer about what insurance I want to select for myself?

That's a legitimate question, but for now, at least, we can say that Obamacare provides a significant incentive (assuming the employer mandate isn't indefinitely delayed, of course).

So...why should we have legislation that tells employers to provide health financing (I'm resisting more and more calling this stuff insurance)? If the Feds didn't actually care about this stuff, this case would never have happened, of course, and the world would be a much better place.

Quaestor said...

Is it normally the case that the side that gets drubbed in oral arguments will lose?

It is surprising how often that's not the case.

Scott M said...

What business is it of the employer about what insurance I want to select for myself? Pay me for my services and I will bargain for my own insurance plan that covers what I want covered. The insurer will bill me for how much coverage I wish.

Outside local union membership mandates, who is ever forced to participate in an employer's insurance program? I actually negotiated a higher salary because I was able to tell my employer I wouldn't need to be added to their plan.

Quaestor said...

The oral argument phase isn't as decisive as the written arguments. This is because the Court acknowledges the fact that some attorneys are less than impressive on their feet. Just because you're an inarticulate moyshe kapoyer, doesn't mean you aren't right.

That said the United States has considerable 'splainin' to do.

When the decision comes down this summer the Senate Democrats, not Obama, could take more comfort in a defeat for the US than a victory. If Obamacare comes out looking moribund, which is likely, it may cool the passion of some GOP voters who might forget to vote next November; whereas a victory will just inflame them all the more.

Brennan said...

I actually negotiated a higher salary because I was able to tell my employer I wouldn't need to be added to their plan.

Really? This worked. I never tried to do this, but I would serioualy want this.

Didn't they object to the tax deductions they would lose from the insurance premiums they were paying on your behalf?

Lydia said...

Is it normally the case that the side that gets drubbed in oral arguments will lose?

Well, Verrilli also got drubbed over ACA at the Court back in 2012. And look how that turned out.

Iapetus said...

@PB Reader 12:15 ""Congress didn't create this mess. Democrats did. They need to be held to account for this travesty of a law."

I'd say CJ John Roberts gave the Democrats a lot of help when he rescued the ACA law with his legal legerdemain. I'm betting the Court will double down on its previous mistake n order to maintain peace with the ladies in black robes.

Fen said...

Is it normally the case that the side that gets drubbed in oral arguments will lose?

No. In fact, in recent memory it seems to be the reverse. Thats why I stopped making predictions based on oral arguments.

Drago said...

Fen: "No. In fact, in recent memory it seems to be the reverse."

We call this other law identified by Fen "Fen's Other Law".

Hey, who are you calling "uncreative"?

Fen said...

But I think everyone agrees its going to be a 5-4 decision with Kennedy as the swing?

Fen said...

LOL Drago!

khesanh0802 said...

I find it fascinating that Kagan proposes what many corporations are about to do (should the employer mandate ever go into effect): drop health insurance, dump the employees on the exchanges and pay the fines. Good luck to the employees.

Is she prescient? Is she an economist? Is she stupid? You pick!

eric said...

Lyssa wrote;

"We did mock SCOTUS arguments for a class in law school"

There ought to be more mocking of SCOTUS and not just in law school.

Fen said...

Is SCOTUS exempt from ObamaCare?

Seeing Red said...

Isn't the federal government exempt?

Seeing Red said...

I'm certainly against having our interest on the debt be almost 26%.

Is that too low, high, or just about right for you, madisonfella?

Seeing Red said...

Kalgan just finally let the cat out of the bag. that being said, if corporations have religios standing not to pay for birth control pills, why don't we as individuals have the same? Offer policies which don't have that option.

Bruce Hayden said...

[W]e've got about 2 million women who rely on the IUD as a method of birth control in this country. I don't think they think they are engaged in abortion in doing that. It is their belief. It's sincere. We respect it.

There are currently six Roman Catholics on the Supreme Court, and five of them are the guys who make up the conservative block in the Court. Being told that millions do not agree with the theology of their Church is not likely to be persuasive. The question is not what some other people don't believe, but rather, that some people do believe that that sort of contraception is the taking of a human life, and the question of whether they should be required by the regulations to fund such. Justice Sotomayer may ignore the teachings of her church, but I suspect that her Roman Catholic brethren on the Court will not - at least to the point of accepting that this is a legitimate religious belief.

MaxedOutMama said...

Just posting to thank you for your excellent coverage of the issue and judicial and legislative background.

It truly is appreciated.

cubanbob said...

"Medical necessity doesn't matter if the text of the PPACA specifically requires something. If the law required funding for facelifts for Senators, it doesn't matter whether that's a medical, or merely aesthetic, necessity. I believe the PPACA specifically requires provision of free birth control, as opposed to assuming it's "medically necessary".

Anthony you point out another flaw in the ACA. Insurance exist to indemnify an insurable event and in case of health insurance the events are illness and injury which pregnancy in of itself isn't either. Insurance companies are licensed in every state the companies sell policies-interstate insurance sales are against federal law and regulated by each state and each state determines what insurable event the policy must insure at the minimum. The federal government has no authority to require carriers that sell state specific policies to cover what the state department of insurance doesn't mandate. Why this federalism question hasn't been raised I don't know.

John said...

re lawyers prepping for argument and then BLAM!

I enjoy listening to the oral arguments as MP3s on interesting cases. I've learned lots of cool trivia such as that the AUMF Congress passed on Iraq met the legal definition of "declare[ing] war"

But I remember one argument where the attorney stood up and spoke for 2-3 minutes without a question from the Justices. He seemed like he found it disconcerting. I could imagine him thinking "No questions? Is my argument that good? Or that bad?"

I look forward to Friday when the audio of the Hobby Lobby case will be available.

John Henry

MattL said...

Why this federalism question hasn't been raised I don't know.

Well...that's kinda where the, "It's a tax!" bit comes in.

Taxes, is there anything they can't do?!

Naut Right said...

Though only briefly touched upon, I do not understand how a corporation can be a citizen or person for the speech portion of the first amendment then have that status denied for the free exercise portion of the first amendment. Will the court take the role of King Solomon and divide the baby so as to facilitate the ACA plan to divide babies?

cubanbob said...

When the decision comes down this summer the Senate Democrats, not Obama, could take more comfort in a defeat for the US than a victory. If Obamacare comes out looking moribund, which is likely, it may cool the passion of some GOP voters who might forget to vote next November; whereas a victory will just inflame them all the more."

quaestor :
Not really since this would be at best a small limitation on ObamaCare. On the otherhand if the case in front of the DC court of appeals goes against the government forcing the Administration to implement the rest of the law now there will be a hell of a lot of people imflamed against the Democrats.

MattL said...

I do not understand how a corporation can be a citizen or person for the speech portion of the first amendment then have that status denied for the free exercise portion of the first amendment.

My logical and non-lawyerly thoughts on this come to the conclusion that ultimately, it's still individuals doing things. But some people think that if you organize with other individuals in certain ways, the government should be able to infringe on rights that you could otherwise exercise as an individual. This strikes me as wrong.

Michael K said...

"The Tea Party isn't FOR anything, rather they are AGAINST everything. They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party."

Do you have someone standing by to remind you to breathe ? This is so dumb I have to wonder.

Michael K said...

"Didn't they object to the tax deductions they would lose from the insurance premiums they were paying on your behalf?"

The money they pay you for your work is a business expense and is deducted from revenue before profit is calculated. An individual cannot deduct health insurance from taxes. The employee is the loser here, not the employer.

richard mcenroe said...

Why can't the owners of Hobby Lobby opt out when the Amish and Muslims are already largely exempted from OCare? What's the difference here?

David said...

Kennedy observes that the agency's exemptions were given "without reference to the policies of RFRA." So "what were the policies that you were implementing?" Churches got exemptions, and businesses with less than 50 employees got exemptions, and then there were the grandfathered plans. How do you argue a compelling interest in no exemptions when the government has made all those exemptions?

Kennedy wants the agency to act according to principles. How old fashioned. Expedience is now the governing principle of the executive branch.

a psychiatrist who learned from veterans said...

"Kennedy wants the agency to act according to principles." Makes you wonder if utopia is constructed out of denial and manipulation. Meanwhile Mrs. Obama lectures the Chinese about the desirability of free speech. In the U.S you have a right to free speech, freely to agree with TNC etc. or even to mutter to yourself but spend money disagreeing and 'Nice free speech you have there; be a shame if anything happened to it, Mr. Koch.' Kind of like the free exercise of religion.

Revenant said...

The Tea Party isn't FOR anything, rather they are AGAINST everything

When you're deep in debt and sinking deeper into debt with each passing second, "what can we stop spending money on" is a pressing question. "What else can we find to spend money on"... isn't.

They are the modern day reincarnation of that other Republican party offshoot commonly known as the "Know-Nothing" party

The Know Nothings were founded in 1845. The Republican Party was founded in 1854. It would be a pretty neat trick for a party to be an offshoot of another, younger party. :)

Kirk Parker said...

Brennan,

"Didn't they object to the tax deductions they would lose from the insurance premiums they were paying on your behalf?"

Oops, Blogger swallowed up your <scarcasm> tags. (In the completely, flabbergastingly preposterous event that you're actually serious? No, no, a thousand times no! Businesses like ongoing tax deductions for sunk costs; what could be more golden that that? But a deduction for an actual cash outlay, month after month, is a best a wash in most circumstances.)



eric,

"There ought to be more mocking of SCOTUS and not just in law school."

Oh my goodness no. "Mocking" is way, WAY too lighthearted. The amount of serious grim contempt they are owed just for the contemptible commerce-clause jurisprudence alone pretty much outweighs the whole national debt.

Matthew Sablan said...

If I remember, Verilli wasn't very impressive any other time we've seen him work. He just got lucky that a tax would pass muster, even though he insisted it wasn't a tax.

Scott M said...

If I remember, Verilli wasn't very impressive any other time we've seen him work. He just got lucky that a tax would pass muster, even though he insisted it wasn't a tax.

Of all the Byzantine aspects to the ACA SCOTUS cases, that one made the least amount of sense to me. The government's council made the argument that it wasn't a tax and then that's how it survive the Constitutional challenge?

Matthew Sablan said...

"Is it normally the case that the side that gets drubbed in oral arguments will lose?"

-- To Nate Silver!

gregq said...

"Verrilli says he'd like to think his limiting principles "could inform every operative provision in RFRA," which is to say he wants the Court to read the principle into the text. But why?"

Well, because even Verrilli knows that they have no case under the actual law?

"At page 74 of the transcript, Chief Justice Roberts finally brings up the issue that I believe matters the most. If there's really a compelling government interest here, why didn't Congress put an exemption from RFRA in the text of the ACA? Verrilli has no answer at all. I think this point is crushing, especially since RFRA is a statute and the contraceptive requirement comes from the agency."

Oh, good. Because I'm in complete agreement with you on this, and I was going to be appalled if no one had asked.

I really don't see how this could be anything other than a 9-0 decision for Hobby Lobby. Is it just that the leftists on the Court hate Christians so much that they can't see their way to ruling in Christians favor, even when the law is clearly on their side?

Or is it just that the Court leftists are all religious zealots? The State is their God, they will have no other God before their God, and therefore "render unto Caesar that which is Caesar's, render unto God that which is God's" is insufficient for them, because top their mind everything is Caesar's?

gregq said...

Fen said...

But I think everyone agrees its going to be a 5-4 decision with Kennedy as the swing?

No. I think there's at least a 20% chance that it will be 6-3, with Breyer coming over and saying the Federal Gov't did not chose "the least restrictive method" to advance their "compelling interest".