Commentary Magazine


Topic: ObamaCare mandate

The ObamaCare Chaos Continues

The administration’s decision to extend the period for open enrollment in the Affordable Care Act past the March 31 deadline is hardly surprising. The list of delays, extensions, and postponements of various aspects of the law is already so long that even an article devoted to the topic–such as the one published today by Politico titled “A Brief History of ObamaCare Delays”–is itself an abridged list of only the most prominent examples.

This latest instance is defended by the administration and its supporters as just a commonsense measure intended to help those who were stymied during the enrollment process by the glitch-ridden Heatlhcare.gov website. But the political implications of this decision are more far-reaching than the matter-of-fact announcement that sought to represent it as not a big deal. The delay seeks to get the president off the hook for the ACA likely falling millions short of the seven million enrollees that constituted the administration’s initial goal as well as the benchmark that would enable the ACA to be fiscally responsible.

At this point any excuse, no matter how flimsy, to do something to soften the blow of the expected shortfall makes sense for an administration that is already having a tough time selling the unpopular scheme to the public. But more than that, the record of unending delays and meaningless deadlines set up a situation where it will be difficult if not impossible for the federal government to police those provisions of the law that it really does want to enforce. Coming at a time when the Health and Human Services contraception mandate is under attack in the Supreme Court and, just as significantly, the system of ObamaCare subsidies is in peril of being overturned in the federal appellate courts, this new delay is just one more reason why the law is rightly viewed as having brought chaos rather than reform to the health-care system.

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The administration’s decision to extend the period for open enrollment in the Affordable Care Act past the March 31 deadline is hardly surprising. The list of delays, extensions, and postponements of various aspects of the law is already so long that even an article devoted to the topic–such as the one published today by Politico titled “A Brief History of ObamaCare Delays”–is itself an abridged list of only the most prominent examples.

This latest instance is defended by the administration and its supporters as just a commonsense measure intended to help those who were stymied during the enrollment process by the glitch-ridden Heatlhcare.gov website. But the political implications of this decision are more far-reaching than the matter-of-fact announcement that sought to represent it as not a big deal. The delay seeks to get the president off the hook for the ACA likely falling millions short of the seven million enrollees that constituted the administration’s initial goal as well as the benchmark that would enable the ACA to be fiscally responsible.

At this point any excuse, no matter how flimsy, to do something to soften the blow of the expected shortfall makes sense for an administration that is already having a tough time selling the unpopular scheme to the public. But more than that, the record of unending delays and meaningless deadlines set up a situation where it will be difficult if not impossible for the federal government to police those provisions of the law that it really does want to enforce. Coming at a time when the Health and Human Services contraception mandate is under attack in the Supreme Court and, just as significantly, the system of ObamaCare subsidies is in peril of being overturned in the federal appellate courts, this new delay is just one more reason why the law is rightly viewed as having brought chaos rather than reform to the health-care system.

As we noted yesterday, the willingness of the administration to regard enforcement of the various provisions of the health-care law as optional is undermining its ability to defend the contraception mandate in the Hobby Lobby case. And, as Philip Klein reports in the Washington Examiner today, the legal challenge to the subsidy system may be even more dangerous to ObamaCare’s future than the more famous Hobby Lobby case that revolves around the law’s assault on religious liberty. Since the law was written so as to create subsidies for ObamaCare consumers through state-run exchanges, the fact that many states have not chosen to set them up creates a constitutional problem that can only be solved by a revision of the law by Congress or a decision by the courts to do so on their own. Since the courts are properly reluctant to re-write a statute in this manner and there is no chance that Congress will do anything to fix the problem, the system of subsidies may well be overturned, creating even more chaos for the already misnamed Affordable Care Act. If so, implementation of the unwieldy legislation will become impossible.

While Democrats are trying to put a brave face on their defense of ObamaCare, they know that this is the issue that could cost them the Senate in what may well turn out to be an even worse drubbing this fall than the one they suffered in 2010. The administration has tried to postpone as much of the pain from this law until after 2014 as they can. The federal courts are unpredictable and public opinion may be fickle. But by adding to the impression that the law on which the president staked his reputation is in a state of chaos, the latest delay—and the ones that will inevitably follow it in the months to come—may only make it even more likely that congressional Democrats will suffer a grave defeat in November.

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The Shrinking Mandate and Freedom

We won’t know the outcome of today’s hearing before the U.S. Supreme Court of the Hobby Lobby v. Sebelius case, which tests the right of the government to impose a mandate forcing all businesses to pay for contraception and abortion-inducing drugs, until later this spring. As I wrote yesterday, the case is a crucial test for the future of religious freedom in this country since if the government prevails it will mean that persons of faith will be obligated to abandon their principles if they wish to participate in commerce. But though it is widely understood that this case is the byproduct of the ongoing fight about ObamaCare, what is not often pointed out is that President Obama’s favorite tactic in trying to soften the blow of his signature health-care law prior to the 2014 midterms highlights the hypocrisy of his administration’s arguments before the courts.

Over the course of the last year, the administration has granted numerous exemptions and delays to businesses and various types of individuals from having to comply with the law. As Politico reports today, the extent of how far the individual mandate has shrunk is astounding. The point of that exercise is to reduce the pain felt by both businesses and consumers in order to tamp down the general outrage about the law that has been growing since its passage. Democrats say these moves have just been a matter of common sense for a scheme that is in its infancy. But it is telling that the one exemption that the administration has never considered and is, in fact, willing to go to legal war over, is the mandate that is being resisted by Hobby Lobby and other companies with related lawsuits that are being decided by the high court. This is not merely a matter of political bias that can serve as a talking point about the case. As questions from the justices to Solicitor General Donald Verrelli indicated today, it goes directly to the argument put forward by the government that its purpose in compelling Hobby Lobby’s owners to discard their religious scruples constitutes the “least restrictive means of furthering a compelling government interest” as defined by the 1993 Religious Freedom Restoration Act.

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We won’t know the outcome of today’s hearing before the U.S. Supreme Court of the Hobby Lobby v. Sebelius case, which tests the right of the government to impose a mandate forcing all businesses to pay for contraception and abortion-inducing drugs, until later this spring. As I wrote yesterday, the case is a crucial test for the future of religious freedom in this country since if the government prevails it will mean that persons of faith will be obligated to abandon their principles if they wish to participate in commerce. But though it is widely understood that this case is the byproduct of the ongoing fight about ObamaCare, what is not often pointed out is that President Obama’s favorite tactic in trying to soften the blow of his signature health-care law prior to the 2014 midterms highlights the hypocrisy of his administration’s arguments before the courts.

Over the course of the last year, the administration has granted numerous exemptions and delays to businesses and various types of individuals from having to comply with the law. As Politico reports today, the extent of how far the individual mandate has shrunk is astounding. The point of that exercise is to reduce the pain felt by both businesses and consumers in order to tamp down the general outrage about the law that has been growing since its passage. Democrats say these moves have just been a matter of common sense for a scheme that is in its infancy. But it is telling that the one exemption that the administration has never considered and is, in fact, willing to go to legal war over, is the mandate that is being resisted by Hobby Lobby and other companies with related lawsuits that are being decided by the high court. This is not merely a matter of political bias that can serve as a talking point about the case. As questions from the justices to Solicitor General Donald Verrelli indicated today, it goes directly to the argument put forward by the government that its purpose in compelling Hobby Lobby’s owners to discard their religious scruples constitutes the “least restrictive means of furthering a compelling government interest” as defined by the 1993 Religious Freedom Restoration Act.

That the government has never sought to relieve companies of the burden imposed by the Health and Human Services Department mandate is important because of the vast array of other exemptions that it has shown itself willing to countenance. President Obama has played fast and loose with his constitutional obligations to enforce the laws of the land with unilateral decisions that various aspects of the bill he signed into law could be postponed or ignored. This selective enforcement undermines arguments about a “compelling government interest.” Since Hobby Lobby is facing fines of $1.3 million per day for its refusal to pay for services that offend the consciences and the religious beliefs of its owners or over $26 million per year if it dropped coverage altogether, there is no question that it is being placed under a substantial burden.

The government’s arguments are already vague about its justification for this decision. The red herrings about women’s rights and health-care costs that are put forward by administration cheerleaders obscure the fact that no one’s rights or access to contraception is being denied by Hobby Lobby. Nor is there any substance to arguments that owners of for-profit businesses lose their First Amendment rights when they incorporate or engage in commerce. As Gabriel Malor writes in a compelling summary of the myths that Hobby Lobby opponents have propagated at TheFederalist.com:

It is not a radical departure from the norm for businesses to pick and choose what health coverage they provide. In fact, that was the norm for decades. What was new and harmful and possibly part of a slippery slope to lawlesssness was the decision of Secretary [Kathleen] Sebelius to impose her will on businesses, for the first time demanding that they provide morally objectionable coverage or face crippling penalties.

As Malor also writes, the notion that there is a compelling government interest in forcing Hobby Lobby to bend to the will of the administration is undermined by the fact that:

Sebelius has already exempted 190 million people from the contraception mandate, either because they work for non-profit corporations or because their plans were “grandfathered” when ObamaCare became effective.

Under these circumstances with widespread exemptions the arguments in favor of the government aren’t merely exposed as constitutionally weak but a demonstration of the administration’s hostility to religious believers who disagree with the mandate. A nation that values religious freedom less than it does Barack Obama’s political calculations is one that is abandoning the First Amendment’s guarantee of free exercise of religion.

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Liberals’ Hobby Lobby Scare Campaign

Tomorrow the U.S. Supreme Court finally takes up a case that has been headed toward their courtroom since the 2010 passage of ObamaCare. Two private companies are challenging the Department of Health and Human Services’ mandate that requires all companies to pay for a range of services including contraception and abortion-inducing drugs that violate the religious beliefs of their owners. The two companies, the Oklahoma City-based Hobby Lobby craft store chain and Pennsylvania’s Conestoga Wood Specialties Corporation are seeking to defend the First Amendment rights to exercise of religion against the government’s attempt to impose its beliefs and policies on all employers by threatening to ruin them with fines and penalties if they dare to refuse to obey the mandate.

But according to the administration and its liberal cheerleaders in the media, the stakes involved in this case involve nothing less than the future of women’s rights as well as those of gays. As the lead of a New York Times news story that would have been better placed on their opinion page read, this is a “case that pits religious liberty against women’s rights.” That frame of reference dovetailed nicely with a Times editorial that claimed Hobby Lobby and its supporters were “crying wolf about religious liberty” that would allow business owners to impose their beliefs on their helpless employees. Even worse, they claim it will gut health care and deny basic services to many Americans.

This is nothing less than a scare campaign aimed at intimidating the conservative members of the high court—or perhaps just Chief Justice John Roberts, whose worries about exposing his institution to political criticism allowed ObamaCare to survive a justified challenge to its constitutionality in 2012—to back away from a rigorous interpretation of the law that would obligate them to strike down the mandate. Far from setting off legal chaos that will undermine the foundation of human rights in this country, should Hobby Lobby and its fellow plaintiffs win, the result would be a reaffirmation of individual liberty and the basic protections afforded all Americans by the Constitution.

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Tomorrow the U.S. Supreme Court finally takes up a case that has been headed toward their courtroom since the 2010 passage of ObamaCare. Two private companies are challenging the Department of Health and Human Services’ mandate that requires all companies to pay for a range of services including contraception and abortion-inducing drugs that violate the religious beliefs of their owners. The two companies, the Oklahoma City-based Hobby Lobby craft store chain and Pennsylvania’s Conestoga Wood Specialties Corporation are seeking to defend the First Amendment rights to exercise of religion against the government’s attempt to impose its beliefs and policies on all employers by threatening to ruin them with fines and penalties if they dare to refuse to obey the mandate.

But according to the administration and its liberal cheerleaders in the media, the stakes involved in this case involve nothing less than the future of women’s rights as well as those of gays. As the lead of a New York Times news story that would have been better placed on their opinion page read, this is a “case that pits religious liberty against women’s rights.” That frame of reference dovetailed nicely with a Times editorial that claimed Hobby Lobby and its supporters were “crying wolf about religious liberty” that would allow business owners to impose their beliefs on their helpless employees. Even worse, they claim it will gut health care and deny basic services to many Americans.

This is nothing less than a scare campaign aimed at intimidating the conservative members of the high court—or perhaps just Chief Justice John Roberts, whose worries about exposing his institution to political criticism allowed ObamaCare to survive a justified challenge to its constitutionality in 2012—to back away from a rigorous interpretation of the law that would obligate them to strike down the mandate. Far from setting off legal chaos that will undermine the foundation of human rights in this country, should Hobby Lobby and its fellow plaintiffs win, the result would be a reaffirmation of individual liberty and the basic protections afforded all Americans by the Constitution.

As I have noted previously, you don’t have to agree with the owners of Hobby Lobby or other persons of faith about abortion or contraception in order to understand that a defeat for them would endanger everyone’s rights. If their religious liberty is considered less important than the government’s desire to create a universal mandate for employers to pay for such services, then there is no limit to what the government can demand and no room for faith in our public square anymore. In this case the plaintiffs are merely asking the courts to remember that the Religious Freedom Restoration Act (RFRA) set a standard by which government would be forced to prove that they were not imposing a substantial burden on the free exercise of faith by demanding that believers bow to their dictates. This is clearly not the case with ObamaCare, since its contraception mandate forces religious business owners to participate in the provision of services that clearly violate their consciences.

Protecting their rights to abstain from the mandate does not in any way endanger the rights of women or their health since Hobby Lobby employees are free to purchase such drugs on their own. What the government wants is not to protect the freedom to use contraception—which is not in question—but to be able to make religious organizations as well as private businesses pay for it and thus compromise their principles. Their reasoning is twisted, but at its heart is the belief that government can run roughshod over rights in order to obtain some larger good such as free health services. Upholding such a mandate would mean a re-writing of the First Amendment that would protect private expressions of faith but prohibit its exercise in the public square. The administration seeks to interpret the law in such a manner as to require people to choose between their faith and the survival of their enterprises. Our framers believed that government moral coercion of this sort was beyond the pale. That is why they sought to create a constitutional framework that ensured that while we would have no established church, neither would our government seek to constrain religious freedom.

As we saw with the recent furor over a revision in the Arizona version of RFRA, it is entirely possible for concerns about the rights of women or gays to be used as a weapon in order to squelch discussions about religious liberty and the Constitution. But the Supreme Court should be immune to such cynical scare mongering by the administration and the liberal mainstream media. Let us hope the justices ignore the attempt to buffalo them into suppressing religious freedom in the name of upholding ObamaCare.

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Smearing Religious Freedom’s Defenders

The verdict of national public opinion about what was universally represented as an attempt by Arizona’s legislature to authorize discrimination against gays was overwhelming. Though support for gay marriage is not yet unanimous, Americans don’t like prejudice and think laws that might legitimate bias are, by definition, wrongheaded. By vetoing Arizona’s SB1062 bill, Governor Jan Brewer was simply practicing political common sense and saving both her state (which stood to lose conventions and even an upcoming Super Bowl over the controversy) and the national Republican Party a great deal of grief over what was claimed to be a new version of Jim Crow. The “anti-gay bill” stood to become this year’s version of Todd Akin’s infamous comments about rape and abortion and could have been a millstone around the necks of all conservatives even in a year in which the GOP stands to gain ground across the country.

Fresh off this almost uncontested victory, liberals like The New Yorker’s Jeffrey Toobin are hoping to follow up on their triumph by pivoting from this controversy to ratcheting up anger at the prospect that the Supreme Court will allow religious business owners to claim religious exemptions from the federal government’s demands that they pay for insurance coverage of acts that violate their religious beliefs. What has that got to do with an “anti-gay bill?” And how can liberals hope to mobilize Americans on this issue the way they did on the Arizona bill given the significant public sympathy for the religious freedom protest of companies like the Hobby Lobby chain as well as antipathy for the ObamaCare mandates?

In order to answer that question you would have had to have actually read the Arizona bill, something that few media figures, let alone the general public actually did before lambasting it. As National Review editor Rich Lowry, pointed out in an insightful Politico op-ed published last week, even a cursory glance at the bill yielded nothing to justify the universal condemnation that rained down on it from the mainstream media. But at the heart of that dustup and the one on the ObamaCare Mandate is the same question of religious liberty that got steamrollered in Arizona and is again being attacked in the Hobby Lobby case. The principle being defended here isn’t Jim Crow or any other form of prejudice but the constitutionally protected right to religious freedom.

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The verdict of national public opinion about what was universally represented as an attempt by Arizona’s legislature to authorize discrimination against gays was overwhelming. Though support for gay marriage is not yet unanimous, Americans don’t like prejudice and think laws that might legitimate bias are, by definition, wrongheaded. By vetoing Arizona’s SB1062 bill, Governor Jan Brewer was simply practicing political common sense and saving both her state (which stood to lose conventions and even an upcoming Super Bowl over the controversy) and the national Republican Party a great deal of grief over what was claimed to be a new version of Jim Crow. The “anti-gay bill” stood to become this year’s version of Todd Akin’s infamous comments about rape and abortion and could have been a millstone around the necks of all conservatives even in a year in which the GOP stands to gain ground across the country.

Fresh off this almost uncontested victory, liberals like The New Yorker’s Jeffrey Toobin are hoping to follow up on their triumph by pivoting from this controversy to ratcheting up anger at the prospect that the Supreme Court will allow religious business owners to claim religious exemptions from the federal government’s demands that they pay for insurance coverage of acts that violate their religious beliefs. What has that got to do with an “anti-gay bill?” And how can liberals hope to mobilize Americans on this issue the way they did on the Arizona bill given the significant public sympathy for the religious freedom protest of companies like the Hobby Lobby chain as well as antipathy for the ObamaCare mandates?

In order to answer that question you would have had to have actually read the Arizona bill, something that few media figures, let alone the general public actually did before lambasting it. As National Review editor Rich Lowry, pointed out in an insightful Politico op-ed published last week, even a cursory glance at the bill yielded nothing to justify the universal condemnation that rained down on it from the mainstream media. But at the heart of that dustup and the one on the ObamaCare Mandate is the same question of religious liberty that got steamrollered in Arizona and is again being attacked in the Hobby Lobby case. The principle being defended here isn’t Jim Crow or any other form of prejudice but the constitutionally protected right to religious freedom.

As Lowry pointed out:

It was jarring to read the coverage of the new “anti-gay bill” passed by the Arizona Legislature and then look up the text of the instantly notorious SB 1062. The bill was roughly 998 pages shorter than much of legislation that passes in Washington, so reading it didn’t take much of a commitment. Clocking in at barely two pages, it was easy to scan for disparaging references to homosexuality, for veiled references to homosexuality, for any references to homosexuality at all.

They weren’t there. A headline from The Week declared, “There is nothing Christian about Arizona’s anti-gay bill.” It would be more accurate to say that there was nothing anti-gay about Arizona’s anti-gay bill.

The legislation consisted of minor clarifications of the state’s Religious Freedom Restoration Act [RFRA], which has been on the books for 15 years and is modeled on the federal act that passed with big bipartisan majorities in the 1990s and was signed into law by President Bill Clinton.

If you’ll excuse a brief, boring break from the hysteria to dwell on the text of the doomed bill, it stipulated that the word “person” in the law applies to businesses and that the protections of the law apply whether or not the government is directly a party to a proceeding (e.g., a lawsuit brought on anti-discrimination grounds).

The reason that the law was so fiercely denounced was because it opened up the possibility that a business such as florist or a baker could use the state’s version of the federal FRFA in order to back up a refusal to take part in activity that might violate their religious beliefs such as a gay wedding. The legal distinction here is a fine one. No one disputes (or at least no one should) that businesses that are a public accommodation have no right to turn away customers on the basis of their race, religion, beliefs or, their sexual orientation. But commissioning someone to create a floral arrangement or display to celebrate something they oppose is not quite the same thing as merely showing up and asking to buy flowers or bread or to sit at a lunch counter. Where exactly the law comes down on such situations is a matter of debate. You might well argue that such vendors should just accept the business or lose it to competitors. But arguing that their personal beliefs should be ignored when someone demands they participate in events that, however sympathetic, violate their beliefs, is rightly considered a bridge too far for many civil libertarians.

What happened in Arizona was that the growing support for gay marriage was used to delegitimize anyone who sought to carve out some legal space for those disagreed on religious grounds and the affair snowballed into a national furor that drowned out opposing arguments. What Toobin and other liberals would like to see is the same process apply to Hobby Lobby and other religious believers who see the ObamaCare mandate as violating their liberty by painting them as opponents of women’s rights.

The conceit of the liberal argument is to brand as intolerant those who oppose forcing religious institutions or business owners to pay for abortion drugs or contraception for their employees under the mandate. According to Toobin and the administration, those who oppose the Mandate are seeking to impose their religious views on employees and to deny them necessary services. But this is false. No one is preventing anyone from obtaining access to birth control or even an abortion drug. What the owners of Hobby Lobby and the many other plaintiffs in these cases are seeking is to not be involved in the purchase of products and services they oppose. It is the government and its liberal cheerleaders who are seeking to impose their beliefs on religious believers, not the other way around. And, unless the U.S. Supreme Court stops them by ruling in favoring of Hobby Lobby, that is exactly what they will do. One doesn’t have to oppose abortion or contraception to understand that if the government can have its way in this case, no one’s rights are safe.

The problem liberals face in seeking to demonize persons of faith who oppose the ObamaCare Mandate is that, unlike Arizona’s SB1062, the public is already well aware of its intrusive nature and the assault on individual rights it represents. Opponents of RFRA were able to buy the Arizona bill under a mountain of obfuscation, innuendo and disinformation. Liberals should forget about being able to play the same game in defense of a position that seeks to restrict religious freedom for the sake of a vast expansion of government power that a majority of Americans already oppose.

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