Commentary Magazine


Topic: U.S. Supreme Court

Free Contraception v. the Constitution

Liberal anger over last week’s Hobby Lobby decision increased on Thursday when the U.S. Supreme Court granted a provisional exemption to a Christian college that objected to being compelled to pay or even be complicit in the distribution of abortion-inducing drugs. This will cause the left to redouble efforts to recycle its “war on women” meme. But like many of the recent criticisms of the court, this argument seemed to have everything to do with politics and nothing with the Constitution.

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Liberal anger over last week’s Hobby Lobby decision increased on Thursday when the U.S. Supreme Court granted a provisional exemption to a Christian college that objected to being compelled to pay or even be complicit in the distribution of abortion-inducing drugs. This will cause the left to redouble efforts to recycle its “war on women” meme. But like many of the recent criticisms of the court, this argument seemed to have everything to do with politics and nothing with the Constitution.

The decision that granted Wheaton College the right to avoid even the appearance of complicity in the use of such drugs provoked a particularly angry response from the court’s three female members. Speaking on behalf of the liberal trio, Justice Sonia Sotomayor wrote that allowing Wheaton to opt out of the Health and Human Services Department’s ObamaCare contraception mandate gave the lie to the conservative majority’s assurances in Hobby Lobby. In that decision, Justice Samuel Alito ruled that all they were doing was ensuring that requirements to provide free contraception coverage in insurance plans were enforced in the manner that would not place a “substantial burden” on the religious freedom of those affected.

Sotomayor believed the plan proposed by the government that would require religious non-profits like Wheaton to submit forms to their insurance carriers instructing them to provide the drugs, albeit without payment from the institutions in question, was an adequate fix. The majority rightly disagreed. While a provision to allow the government to step in and pay for the drugs was legal, demanding those with religious objections to the use of such drugs to take part in their distribution in this manner clearly violated the First Amendment protections of religious freedom.

But the debate about this decision, and the subsequent distortions of it on the Sunday talk shows and on MSNBC, demonstrate something far more insidious than merely the latest iteration of what is generally put down as a “culture war” issue. After all, no one, not even Wheaton College or the Green family that owns the Hobby Lobby company are advocating for the ban of contraception or believe that what they are doing in these suits is part of a campaign to end or even limit legal abortions in this country. Rather, what we are witnessing is a liberal meltdown in which they have come to believe the First Amendment is a technicality that should brushed aside when it comes into conflict with the “right” to free contraception.

The notion of such a right dates only to the aftermath of the passage of ObamaCare in 2010 when HHS interpreted the law as an authorization for a mandate that would require all employers, regardless of whether they were religious institutions or not, or the beliefs of their owners, to pay for a wide range of contraception, including those drugs that are believed to cause abortions.

Most Americans are not opposed to any form of contraception and may even approve of drugs or devices that some believers see as abortion inducers. But one doesn’t have to share the convictions of the Greens or the board at Wheaton to understand that a bureaucratic mandate that runs roughshod over their faith trashes the First Amendment protection of free exercise of religion that all Americans rely upon.

Yet for the political left, the concept of religious liberty has been re-interpreted as to only mean the right to be allowed to pray in private but not to live one’s faith in the public square. When faith conflicts with policy initiatives such as the free contraception mandate, they assume that religion must always lose. However, the court majority has rightly reminded us that the freedoms guaranteed in the First Amendment cannot be trashed simply because a lot of Americans want not only access to contraception but also think their employers ought to be compelled to pay for it.

But to liberals, a decision that reaffirms the primacy of religious freedom is just the latest iteration of a Republican “war on women.” As a political slogan, that meme has been political gold for Democrats who believe its use guarantees their stranglehold on the votes of unmarried women. But as infuriating and wrongheaded the war on women arguments may be, what is really troubling about them is that they reflect a utilitarian approach to the Constitution that regards any of its protections as expendable if they are obstacles to a liberal policy goal.

It should be pointed out again that the Religious Freedom Restoration Act that the court has rightly referenced in its decisions granting relief to opponents of the HHS mandate once had bipartisan support. But Democrats appear to be willing to sacrifice it now that its protections for faith are making implementation of this notion of free contraception for all difficult.

This is significant not because that goal is unreasonable or immoral. No-cost contraception is no more absurd than many other federal entitlements, though even its most fervent advocates must understand that the cause of free condoms and birth control pills has none of the moral authority that efforts to guarantee food, shelter, or even basic health care for the poor can command. But even if we were to agree that this particular prooposal is a laudable program, the idea that providing these items free of charge at the expense of all employers—including those with deep religious convictions—is so important that it must take precedence over religious freedom is insupportable. Indeed, it can only be asserted in the context of a belief that no constitutional protections of any kind can stand against it.

Do single women truly believe that their desire for free contraception is a principle of such importance that it trumps the First Amendment? That is a doubtful proposition. But it makes sense in a liberal political environment in which the Constitution no longer commands the respect of one side of the political aisle.

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The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

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Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

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Freedom for Religion, Not From It

Today the U.S. Supreme Court once again affirmed that the so-called “wall of separation” that exists between church and state is not quite the edifice that liberals would like it to be. In Town of Greece v. Galloway, the court ruled today that a village in upstate New York did not violate the First Amendment in allowing members of clergy to begin town board meetings with prayers, some of which were explicitly sectarian (and usually Christian) rather than ecumenical. The narrow vote along the usual 5-4 conservative/liberal lines is bound to incite many on the left to express fears about the court trying to turn the U.S. into a “Christian nation.”

But in upholding the rights of Greece, N.Y. to have meetings begin with a religious invocation, the court has done no such thing. Rather, it has simply affirmed a long American tradition of beginning public meetings with prayer. Even more to the point, by refusing to be drawn into the question of regulating the content of such prayers, the court has preserved religious liberty rather than constricting it. The decision also provides a timely reminder that for all the talk about separation walls, the main point of the First Amendment is to preserve freedom of religion, not freedom from any mention or contact with faith.

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Today the U.S. Supreme Court once again affirmed that the so-called “wall of separation” that exists between church and state is not quite the edifice that liberals would like it to be. In Town of Greece v. Galloway, the court ruled today that a village in upstate New York did not violate the First Amendment in allowing members of clergy to begin town board meetings with prayers, some of which were explicitly sectarian (and usually Christian) rather than ecumenical. The narrow vote along the usual 5-4 conservative/liberal lines is bound to incite many on the left to express fears about the court trying to turn the U.S. into a “Christian nation.”

But in upholding the rights of Greece, N.Y. to have meetings begin with a religious invocation, the court has done no such thing. Rather, it has simply affirmed a long American tradition of beginning public meetings with prayer. Even more to the point, by refusing to be drawn into the question of regulating the content of such prayers, the court has preserved religious liberty rather than constricting it. The decision also provides a timely reminder that for all the talk about separation walls, the main point of the First Amendment is to preserve freedom of religion, not freedom from any mention or contact with faith.

In recent decades, the “separationist” position on church/state interaction has grown more, rather than less, aggressive. In its 1962 Engel v. Vitale decision that banned public school prayers, the court rightly ruled that school districts had no business imposing what were often sectarian prayers on children. Given that students were not free agents who could accept or reject these prayers with impunity, it was clear that the practice could easily be considered an “establishment” of a state religion that is prohibited by the First Amendment. But purely ceremonial affairs such as invocations before legislative proceedings cannot be reasonably interpreted in the same light. Since, as Justice Anthony Kennedy noted in the majority opinion, such prayers go back to the First Congress and have been repeatedly upheld since then, any attempt to overturn these precedents was unwarranted.

It is true that for any member of a minority faith or for atheists, the repeated use of Christian prayers at Greece’s public meetings might be tedious or possibly offensive. But in the absence of a more diverse group of local clergy in this hamlet not far from the shores of Lake Ontario, the town’s choices were between either censoring the prayers of local clergy who were willing to take part or eliminating the practice. Clearly there are many on the left who would have been comfortable with the former and well pleased with the latter.

But what must be acknowledged is that being put in a position where one must listen to the prayers of another faith is not a violation of one’s constitutional rights. A ceremonial prayer, like the words “In God We Trust” on our coinage, does not transform our republic into one with a state religion. So long as those participating in such gestures are not attacking other faiths or those who do not believe in religion, their words are not an establishment of religion or impinge on the freedom of those listening. Adults at a town board meeting are not like schoolchildren in a closed class. They can join in the prayer or not at their own pleasure with no fear of punishment.

At the heart of this issue is the notion that any expression of faith in the public square is a violation of a vast mythical wall that some believe must completely separate religion from state. But while the Founders explicitly and with good reason forbade any one sect, denomination, or faith from being empowered by and identified with the state, they did not intend the First Amendment to be used as a shield to prevent Americans from any contact with religion. To the contrary, they saw faith as having an important role in preserving a democratic nation and a civil society.

There may have been a time when religious minorities and non-believers felt that the identification of the state with the faith of the Christian majority resulted in discriminatory practices that compromised their rights. But what is at stake here are not cases of bias or religious rule but rather the desire of some to be insulated from expressions of faith, and that is a privilege that the First Amendment does not provide them.

As we have seen with the efforts by the Obama administration to restrict the rights of religious believers in the Hobby Lobby case concerning the ObamaCare contraception mandate, there is a not inconsiderable body of opinion that would like to promote a cribbed definition of religious liberty that would be restricted to prayers in houses of worship or private homes. But Americans have always defined religious freedom in a more open and expansive manner that allowed them to practice their faith on the public square rather than only in private. It is that rich legal tradition that the court has upheld in Town of Greece. Though only a narrow majority is defending that principle on the Supreme Court at present, it is one that is well worth preserving.

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SCOTUS Roulette: Why Winning Matters

In recent years discourse between various wings of the Republican Party has descended into a fight between people who largely view each other as stereotypes rather than allies. Given the stakes involved, the antagonism between Tea Party activists on the one hand and the so-called establishment on the other is understandable and disagreements about tactics are inevitable. These disputes are rooted in part in philosophical differences that are driven in no small measure by the despair that some on the right feel about the future of the nation that seems to mandate that the normal give and take of politics should be superseded by an apocalyptic crusade in which all but true believers must be wiped out. When establishment types attempt to answer such demands with pragmatic sermons about the need to temper absolutism by remembering that the prime objective is to win general elections rather than to conduct ideological purity tests, they are dismissed as temporizing trimmers.

But yesterday’s decision by the U.S. Supreme Court in the Michigan affirmative action case should act as a reminder to even the most hard-core conservatives that not winning elections could have far more catastrophic consequences for the nation than the indignity of making common cause with the GOP establishment. While conservatives were somewhat satisfied with the failure of yet another liberal attempt to defend racial quotas, the refusal of three of the conservative majority on the court to address the core issue points out just how close liberals are to remaking America should they be able to appoint another two or three justices over the course of the next decade. Conservative commentators were united in their contempt for what several called the “Orwellian” reasoning of Justice Sonia Sotomayor’s dissent in the case that was lionized in both a New York Times news article and an editorial on the case. But unless Republicans nominate someone in 2016 that can beat Hillary Clinton, Sotomayor may firmly be in the majority by the time the former first lady finishes her second term 11 years from now.

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In recent years discourse between various wings of the Republican Party has descended into a fight between people who largely view each other as stereotypes rather than allies. Given the stakes involved, the antagonism between Tea Party activists on the one hand and the so-called establishment on the other is understandable and disagreements about tactics are inevitable. These disputes are rooted in part in philosophical differences that are driven in no small measure by the despair that some on the right feel about the future of the nation that seems to mandate that the normal give and take of politics should be superseded by an apocalyptic crusade in which all but true believers must be wiped out. When establishment types attempt to answer such demands with pragmatic sermons about the need to temper absolutism by remembering that the prime objective is to win general elections rather than to conduct ideological purity tests, they are dismissed as temporizing trimmers.

But yesterday’s decision by the U.S. Supreme Court in the Michigan affirmative action case should act as a reminder to even the most hard-core conservatives that not winning elections could have far more catastrophic consequences for the nation than the indignity of making common cause with the GOP establishment. While conservatives were somewhat satisfied with the failure of yet another liberal attempt to defend racial quotas, the refusal of three of the conservative majority on the court to address the core issue points out just how close liberals are to remaking America should they be able to appoint another two or three justices over the course of the next decade. Conservative commentators were united in their contempt for what several called the “Orwellian” reasoning of Justice Sonia Sotomayor’s dissent in the case that was lionized in both a New York Times news article and an editorial on the case. But unless Republicans nominate someone in 2016 that can beat Hillary Clinton, Sotomayor may firmly be in the majority by the time the former first lady finishes her second term 11 years from now.

As both our Peter Wehner wrote here and John Podhoretz also noted in the New York Post today, the result of yesterday’s decision was largely positive. The court upheld the right of Michigan’s voters to ban the use of so-called affirmative action in admissions in public universities by a 6-2 vote with Justice Elena Kagan recusing herself from the case. Both Peter and John rightly lauded the concurring opinion of Justice Antonin Scalia (joined by Justice Clarence Thomas) that would have ruled all racial quotas unconstitutional. By pointing out that the plurality opinion written by Justice Anthony Kennedy (and joined by Chief Justice John Roberts and Justice Samuel Alito) did not go far enough in striking down the efforts of the federal appeals courts to deem the referendum on affirmative action an act of prejudice, Scalia went to the heart of the matter.

As National Review noted in a cogent editorial, it was more like “half a win” than something to celebrate. So long as three-fifths of the conservative members of the court are afraid to act on the logic of Chief Justice Roberts’ apt statement in an earlier case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” and ban such discrimination outright, such efforts will continue to undermine both the Constitution and serve to feed racial discord.

But in addition to lauding Scalia’s brilliant logic, the opinion of Sotomayor merits our attention. The willingness of Sotomayor and Justice Ruth Bader Ginsberg, who concurred with her dissent, to embrace a radical stance that would trash the constitutional protections of equal protection in order to enshrine what would amount to permanent racial quotas so as to redress past acts of discrimination is alarming in its own right. But conservatives who think making common cause with less ideological Republicans is counter-productive should ponder what would happen if the next president gets the chance to replace any of the five conservatives on the court with justices who might embrace Sotomayor’s opinions.

At the moment, the justice most likely to be replaced is Ginsburg who is 81 and not in the best of health. Some on the left are calling for her to resign now while President Obama can replace her with a fellow liberal rather than taking the chance that a Republican successor would be presented with the choice. But whether or not Ginsburg sticks to her guns and stays at the court until she has to be carried out, Republicans also need to consider that if a Democrat is sworn in by Roberts in January 2017, that would raise the very real possibility that it is one or more of the justices they count on to preserve an admittedly weak and inconsistent conservative majority that would be swapped out for a leftist like Sotomayor.

At the moment, three of the conservatives (Roberts, 59; Alito, 64; and Thomas, 65) seem young enough to wait out even two more terms of a Democratic president after Obama. But are even Tea Partiers willing to bet the Constitution on the health of the 78-year-old Scalia or even the weathervane 77-year-old Kennedy holding out until 2025?

Winning elections is not the only purpose of politics. Ideology matters and Republican politicians must be held accountable for behavior that undermines the basic principles of limited government. But unless they want to wake up in an America in which the Sotomayors can twist the Constitution into a pretzel to preserve every variety of liberal legal atrocity, right-wingers need to get over their hostility to more moderate Republicans and work to build an electoral majority rather than a purist schismatic faction.

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Anger at SCOTUS? Liberals v. Constitution

The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

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The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

Of course, it’s not that liberals don’t believe in the Constitution at all. It’s just that they think free speech protections are only somehow relevant to a few specific categories of activity. Liberal jurisprudence has applied First Amendment protections to lots of things that used to be illegal, like flag burning and pornography. They’ve also applied it to activities such as allowing a Nazi march in a heavily Jewish town.

Thankfully, there is also a consensus that the First Amendment clearly applies, as its text indicates, to the right of the press to operate without interference from the government. But, as any media veteran knows, freedom of the press in this country has always meant the right of those who own the press to promulgate whatever views they like. The only way for most of the rest of us to gain some of that same freedom was to pool our money to buy time or space in the media to put forward a different point of view. Though liberal ideologues like Jeffrey Toobin mock the notion that giving money to a campaign is, as Roberts says, “participating in a political debate,” that is exactly what it is. Thus, as Roberts also pointed out in his opinion, the main impact of laws that drastically restrict the ability of individuals to spend money on politics was to disadvantage one group in favor of others.

For liberals, democracy has somehow become dependent on the enforcement of a complex labyrinth of laws first enacted in the wake of the Watergate scandal that have created a bewildering legal landscape for all those who wish to take part in our electoral system. Each new piece of legislation intended to further the principle of good government has created new inequities and anomalies that have further distorted this system to the point where no one but a lawyer who specializes in the field can truly know whether a candidate or campaign has violated them–and even then there is no guarantee that an arbitrary federal prosecution may not ensue. The campaign-finance movement is aimed not so much at the threat from corruption as it is to grant government enormous power over the electoral process. But if the framers of the First Amendment meant anything when they forbade “abridging the freedom of speech,” surely it was to prevent the government from trying to limit political expression.

In his dissent, Justice Stephen Breyer complained that the majority was “eviscerating campaign finance laws.” Though the ruling in McCutcheon was narrow and left standing laws that limit contributions to individual candidates, it may well be that the court will soon take up other related issues as well. But if it does, it will not be because they want to steal from the poor and give to the rich or turn the United States into an oligarchy. It will be because the liberal drive to restrict political speech contravenes basic constitutional principles.

For too long, the courts have let Congress and the growing federal electoral bureaucracy run roughshod over the First Amendment. But contrary to Breyer, “democratic legitimacy” does not rest in allowing the government (which is to say incumbents who always stand to benefit from restrictions that hurt their challengers more than themselves) to distort the electoral process. Democracy means letting everyone speak up, whether we like them or not. It is that prospect that drives liberals crazy. If the Roberts court is bent on preventing them from having their way on campaign finance, the fault lies with not with conservatism or deference to wealth but with the Constitution.

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Court Strikes a Blow for Free Speech and Political Sanity

Liberals didn’t like the U.S. Supreme Court’s 2010 Citizens United ruling that struck down federal limits on political speech from independent groups because they saw it as a the first step toward dismantling the campaign finance regulatory system that aimed to suppress political speech. They will be just as, if not more, unhappy with the court’s 5-4 ruling today in McCutcheon v. Federal Election Commission that rightly held that federal caps on the amount of money individuals could give to candidates, parties, and PACs are unconstitutional.

But while we can expect to hear a chorus of condemnation of the court from the White House, liberal Democrats, and mainstream media pundits who will see this as opening the floodgates to corruption, the warnings that these rulings herald the end of democracy are false. What the court has done today is to reaffirm core constitutional principles that protect the rights of every American to participate in the political system. But just as importantly, by taking the next step toward dismantling a dysfunctional and deeply unfair regulatory system, the court has opened the way toward a saner manner of conducting elections. While all past efforts at “reform” of contributions had driven donors away from the candidates and political parties, the majority opinion in McCutcheon will begin the process of returning them to a central role in campaign finance. That will create a system that is more accountable and freer of overweening governmental regulation of speech. Instead of condemning this sweeping ruling, liberals should be joining conservatives in cheering a step back toward a saner manner of conducting elections.

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Liberals didn’t like the U.S. Supreme Court’s 2010 Citizens United ruling that struck down federal limits on political speech from independent groups because they saw it as a the first step toward dismantling the campaign finance regulatory system that aimed to suppress political speech. They will be just as, if not more, unhappy with the court’s 5-4 ruling today in McCutcheon v. Federal Election Commission that rightly held that federal caps on the amount of money individuals could give to candidates, parties, and PACs are unconstitutional.

But while we can expect to hear a chorus of condemnation of the court from the White House, liberal Democrats, and mainstream media pundits who will see this as opening the floodgates to corruption, the warnings that these rulings herald the end of democracy are false. What the court has done today is to reaffirm core constitutional principles that protect the rights of every American to participate in the political system. But just as importantly, by taking the next step toward dismantling a dysfunctional and deeply unfair regulatory system, the court has opened the way toward a saner manner of conducting elections. While all past efforts at “reform” of contributions had driven donors away from the candidates and political parties, the majority opinion in McCutcheon will begin the process of returning them to a central role in campaign finance. That will create a system that is more accountable and freer of overweening governmental regulation of speech. Instead of condemning this sweeping ruling, liberals should be joining conservatives in cheering a step back toward a saner manner of conducting elections.

For forty years liberals built a mountain of federal laws and regulations that sought to restrict the ability of individuals and groups to make their voices heard on political issues. The campaign finance reform movement was portrayed in the mainstream media as a high-minded force for good government. But the effort to rid politics of the scourge of money was as futile as it was counterproductive. Money is the mother’s milk of politics and the legal labyrinth created by the initial post-Watergate effort and its successors did nothing to curb corruption but it did make the system more and more unaccountable as the laws made it harder to give to individual candidates or political parties. The cumbersome apparatus of campaign finance law made it hard to comply with the law without legal specialists. But most damaging of all was the fact that the thrust of this body of legislation was aimed at suppressing political speech—the one type of activity that the Constitution most sought to protect from the government.

The court held today in McCutcheon that the right to contribute to campaigns is not absolute (Justice Clarence Thomas dissented from the other members of 5-justice majority on this point). But, as Chief Justice John Roberts pointed out today in his ruling, the government  “may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

The sordid truth at the heart of the campaign finance reform movement is that it has always been more about suppressing the free speech rights of individuals then about cleaning up government. There is no evidence the cap rules prevented corruption. But what they do accomplish is to make it harder to take down incumbents or to challenge the dominant voice of a mainstream media whose First Amendment rights to say what they like about candidates have rightly never been questioned.

Campaign finance laws never succeeded in driving money out of politics. But they have forced donors to resort to more indirect methods of financing candidates and causes they like, making the system less accountable. By removing such limits on donations to candidates and parties, the court will increase the influence of these institutions and allow more money to be put in the hands of those who are actually running the campaigns rather than outside groups. This will make elections more transparent and be good for democracy.

As they did with Citizens United, liberals will lament this ruling because it chips away further at the notion that government has a right to limit political speech. But, as Roberts said, “there is no right more basic in our democracy than the right to participate in electing our leaders.” Political donations are no different from any other kind of protected political speech. Allowing more speech, whether from conservatives or liberals, corporations or unions, won’t harm democracy; it enhances it. By ending the federal caps, the court has struck a blow for more freedom, not corruption.

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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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Can SCOTUS Curb Obama’s Imperial Presidency?

In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

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In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

As I noted here yesterday, the president has already begun making good on his SOTU pledge by announcing his intention to issue executive orders regulating emissions from large trucks that will mandate large-scale and expensive changes in that industry. But the EPA’s decision to give itself the power to regulate existing power plants makes that power grab look like small change.

As the New York Times explains, the details of the case are complicated and confusing. Suffice it to say that although the courts have upheld the EPA’s right to regulate carbon emissions, in order to be able to acquire the right to license all power plants for such activity it has been forced to twist the text of the Clean Air Act into a pretzel:

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution.

All sides agree that requiring permits at the statutory thresholds would impose enormous burdens. “We’d be regulating mom-and-pop stores,” said Peter S. Glaser, a lawyer for the Washington Legal Foundation, which filed a supporting brief opposing the regulations.

Applying the law as written would increase the number of covered sources under one program from fewer than 280 to more than 80,000, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to the appeals court. A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of the programs would rise to $21 billion from $62 million.

What’s happened here is that by giving the EPA this power, the court has set in motion a process that could create a regulatory process that would cause massive economic dislocation. In order to avoid such an “absurd result,” the administration is therefore selectively enforcing the law. But, as with other such selective policies, what this means is that essentially the government has given itself the right to act as both legislature and executive to decide what the law means and how it can be enforced.

Given other court decisions that have given the EPA vast powers, it’s far from clear that even a setback for the administration will halt its campaign to overhaul the economy in order to comply with the president’s beliefs about climate change. But the impact of a precedent that would allow him to act as a benevolent dictator to force industries to obey his “green” marching orders means more than just the possible shutdown of hundreds of coal-firing power plants around the nation. It would mean a decisive shift in the balance of power between Congress and the executive branch that could shelve the notion of checks and balances that have enabled our constitutional republic to function.

Over the years both Congress and the courts have often acquiesced in a process whereby the executive branch has grown by leaps and bounds to assume the sort of influence and power that would have been unimaginable to the founders. But so long as the legislative and judicial branches retain the power to write and then interpret the laws, even the federal leviathan can be held in check. But if Justice Roberts and the Supreme Court allow President Obama to get away with not only selectively enforcing laws but also re-writing them on the fly, our system of government will have been fundamentally altered for the worse.

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High Drama at the Court Tomorrow

Tomorrow at 10 a.m., the Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

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Tomorrow at 10 a.m., the Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The original purpose of this provision was to provide a means, at a time when travel was extremely slow and the Senate was likely to be out of session for months at a time, of appointing federal officials temporarily to carry on the business of the government when the Senate was unavailable to confirm the appointment. But presidents had increasingly been using it when the Senate refused to have an up-or-down vote on a nominee, installing the nominee when the Senate had recessed sometimes for only a few days. No one seriously challenged a president’s constitutional right to do so. Indeed, in 2007, the Senate, under Majority Leader Harry Reid, had begun holding pro-forma sessions every couple of days precisely to deny President George W. Bush the power of making recess appointments.

But Obama struck when the Republicans tried to do the same after they took the House in 2010. By having the House not adjourn, the Senate was prevented from doing so as well under Article I, Section 5. Obama simply declared the Senate not to be in real session and made the recess appointments, even though the Senate, far from lollygagging on the confirmation process, had not even had time to have the nominees—nominated less than three weeks earlier and with the holidays intervening—vetted by the FBI or to schedule a committee hearing on them. (Why did the president wait until January 4, and not just appoint them the instant the Senate began holding pro-forma sessions in mid-December? Simple: By waiting until January 4, when the next session of the Senate had officially begun, he secured their positions until the end of 2013 instead of just until the end of 2012.)

When a company named Noel Canning subsequently lost a decision at the NLRB, it sued, claiming the board was illegally constituted. The D.C. Circuit Court agreed a year ago, (see here and here). The three-judge panel ruled, unanimously, that the recess power could only be used during “the recess,” not “a recess,” of the Senate, i.e. only when it had adjourned for the year. By a 2-to-1 vote it ruled that the vacancy had to occur during that recess as well, not earlier. (The dissenting judge sympathized with that judgment, but thought it irrelevant to the case at hand.)

The Supreme Court could duck the issue, saying that this was a political dispute between the two other branches and they would have to sort it out between themselves, overturning the D.C. Circuit’s decision. But to do so would, in effect, gut the Senate’s power to advise and consent to executive branch appointments by allowing the president, not the Senate, to decide when the Senate is in session. Presidents would be free to make recess appointments if the Senate adjourned for lunch. But to uphold the D.C. Circuit ruling in its entirety would sharply curtail the long-standing practice, thus greatly limiting the president’s power in this regard.

This is high constitutional drama.

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SCOTUS Gives Religious Freedom a Hearing

Finally, after three years of debate and litigation, the nation will get an answer. The Health and Human Services Department’s ObamaCare mandate that forces all employers to pay for abortion drugs has been challenged by religious believers in courts across the nation since the passage of the president’s signature health-care legislation in 2010. The federal district and appellate courts have handed down mixed verdicts with some saying that the owners of companies must pay for coverage of services that violate their religious beliefs and others holding that the Religious Freedom Restoration Act protects their rights to refrain from supporting acts that violate their conscience. But now that the Supreme Court of the United States has agreed to hear appeals of two such cases in which the appeals courts handed down contradictory rulings, the issue will be settled once and for all.

But more than just the fate of two companies–one an Oklahoma City-based crafts store chain owned by Catholics and the other a Pennsylvania custom furniture manufacturer owned by Mennonites–are at stake in the legal battle that will probably be decided next spring. If the HHS Mandate is overturned by the high court, it will mark a signal victory for religious liberty over the efforts of the Obama administration to keep faith off the public square and out of public life. Liberal defenders of the government say the owners of Hobby Lobby and Conestoga Wood Specialties Corporation are wrong to say their personal First Amendment right to religious freedom extends to their business. But the plaintiffs and their supporters rightly maintain that what HHS is doing is to strong-arm these business owners into compliance with ObamaCare via a rule that will force them to choose between their faith and the survival of their enterprises. If the HHS Mandate is upheld, it will create a new, cribbed definition of religious freedom that will effectively mean that faith is only something to be practiced in private.

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Finally, after three years of debate and litigation, the nation will get an answer. The Health and Human Services Department’s ObamaCare mandate that forces all employers to pay for abortion drugs has been challenged by religious believers in courts across the nation since the passage of the president’s signature health-care legislation in 2010. The federal district and appellate courts have handed down mixed verdicts with some saying that the owners of companies must pay for coverage of services that violate their religious beliefs and others holding that the Religious Freedom Restoration Act protects their rights to refrain from supporting acts that violate their conscience. But now that the Supreme Court of the United States has agreed to hear appeals of two such cases in which the appeals courts handed down contradictory rulings, the issue will be settled once and for all.

But more than just the fate of two companies–one an Oklahoma City-based crafts store chain owned by Catholics and the other a Pennsylvania custom furniture manufacturer owned by Mennonites–are at stake in the legal battle that will probably be decided next spring. If the HHS Mandate is overturned by the high court, it will mark a signal victory for religious liberty over the efforts of the Obama administration to keep faith off the public square and out of public life. Liberal defenders of the government say the owners of Hobby Lobby and Conestoga Wood Specialties Corporation are wrong to say their personal First Amendment right to religious freedom extends to their business. But the plaintiffs and their supporters rightly maintain that what HHS is doing is to strong-arm these business owners into compliance with ObamaCare via a rule that will force them to choose between their faith and the survival of their enterprises. If the HHS Mandate is upheld, it will create a new, cribbed definition of religious freedom that will effectively mean that faith is only something to be practiced in private.

Liberals are mocking the claim that these business owners have any rights to refuse to fund abortion drugs or even contraception. But the constitutional right to religious freedom is not just about the ability to choose which house of worship to attend or to say private prayers without government interference. Government has no right to tell individuals that they must fund practices that violate their conscience or faith.

Even more contemptible is the attempt by the government and its leftist cheering section to claim that these business owners are imposing their beliefs on their employees, an assertion made by the New York Times earlier this month when it lamented that an appeals court had upheld religious freedom in a related case. The company owners are not requiring their employees to believe as they do or to refrain from having abortions. But they are within their rights to say that if an employee wishes to have one, they should not look to their employers for a subsidy for that act. If the mandate is upheld, then it is not freedom of conscience that is being protected but instead a dubious right to free abortion pills or contraception that cannot be found in any fair reading of the Constitution. It is faith that is under siege in these cases, not abortion rights.

As Appeals Court Justice Janice Rogers Brown wrote in a related case, “The Framers of the Constitution embraced the philosophical insight that government coercion of moral agency is odious.” She went on to write that the mandate is a “compelled affirmation of a repugnant belief” and therefore an unconstitutional burden on free exercise of religion. The Supreme Court will therefore not be deciding the right to abortion or contraception but whether the government’s belief that employers must pay for such services can supersede an employer’s right to free exercise.

Though the fate of ObamaCare will not be decided in these cases, it must be understood that the legislation’s vision of government making decisions about health care practices and policies is integral to the mandate’s attempt to abrogate fundamental constitutional rights. As wrongheaded as Congress was to impose governmental fiats on health care in this manner, the government’s attempt to trample on the rights of religious believers in this fashion is even more offensive. One need not agree with conservative Christians on either abortion or contraception to understand that the underlying principle in this case is the protection of the religious liberty of all Americans. It is to be hoped that the hearing and the decision rendered by the Supreme Court will check the efforts of the federal government to impinge on religious liberty in the name of universal health care. 

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The Court, Marriage, and Federal Power

After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

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After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

Let’s first acknowledge that the culture war about homosexuality has been convincingly won by gays. Twenty years ago the already widespread acceptance of openly gay figures in pop culture had not transferred to the political sphere. Indeed, as recently as 2008, a staunch liberal like Barack Obama had to swear his opposition to gay marriage in order to be considered a mainstream political figure. But that is no longer the case. While national attitudes are still far from unanimous, anyone who would argue that the trend toward its acceptance is not accelerating to the point where opponents are becoming a beleaguered minority has not been paying attention. While defenders of traditional marriage can still put forward coherent arguments about the assault on the institution, appeals to the basic libertarian instincts of most Americans are winning the day for the pro-gay marriage point of view. Nor do the claims that gays marrying would materially damage straight marriages seem to have much traction. A political environment in which most people see the issue as one of equal rights for all citizens, as opposed to one about the distortion of the meaning of an institution to suit the whims of a minority, is not one that is sustainable for gay marriage opponents.

That is exactly why the courts can and should defer to the legislative process to sort out this issue.

It may be that the argument put forward that denying gay marriage is a violation of the Constitution’s 14th Amendment equal protection guarantees is accepted by most Americans. If the high court were to unilaterally rewrite the meaning of the Constitution in that way, it might please not only the media and the pop culture world but perhaps a majority of the country. But such a broad stroke would create other problems that are best avoided.

While seemingly harmless, the rush to codify gay marriage as a constitutional right contains within it the possibility of creating a genuine danger of discrimination against religious faiths that oppose the idea. Catholic institutions (already under assault from federal mandates on reproductive issues) as well as Orthodox Jews, the Greek Orthodox and a host of evangelical Protestant denominations could be put in the awkward position of not just being labeled as bigots but as possible law breakers because of their beliefs due to new requirements to recognize and grant benefits due to spouses. If there is to be a right of gay marriage it must be enacted with stipulations that exempt religious institutions as well as clergy from any repercussions from a refusal to go along with the new consensus. That is the sort of sensible compromise that is far more likely to be brought about by the legislative process than a top-down court ruling.

Gay marriage advocates argue in reply that civil rights cannot be subject to the majority vote but rather must be protected by the law regardless of the whims of the mob, as the founding fathers would have understood the issue. They point to the struggle for racial equality in this country in which the courts played a necessary role in both protecting liberty and in prodding the legislatures and public opinion to catch up with what was right. But however much this issue is represented as one that can only be understood as a question of equality, the creation of a new right via the redefinition of an institution is not quite the same thing as righting the wrongs of slavery. The pro-gay marriage side must understand that it is asking the federal government to go into uncharted waters in that respect, as well as by taking this issue away from local institutions that have always governed interactions between the state and married couples.

Change is best achieved when it is accomplished via the democratic process and with respect for the rights of individual states to sort these things out according to the beliefs of its citizens.

If gay marriage advocates are confident, as they probably should be, that time and public opinion are on their side, then they should concentrate their efforts on winning their battle in the legislatures. That is something they have been doing with increasing success in recent years. Were the court to short-circuit that struggle it would set off a new and bitter struggle over the issue that would distort our politics and roil the culture for years and perhaps decades to come.

While the temptation to enact an all-or-nothing proposition in response to the baffling choices before it may entice some of the justices, they should listen to the voices of caution and avoid such a solution. That might mean punting on the California case, in which it can be argued that Prop 8’s supporters don’t have the standing to argue against its invalidation by state courts, as well as by striking down DOMA as a wrongful federal interference with a state matter.

That would disappoint conservatives who hope the court might save the country from the drive to enshrine gay marriage in various states. But in these cases, as in so many other issues, the greater wisdom always rests in restraining the power of the federal government to impose its will on the states and the people. If America is truly “evolving”—as liberals would have it—toward acceptance of gay marriage, then let it do so by the democratic process and not by a court eager to stay ahead of or get out of the way of public opinion.

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How the Court Made a Bad Bill Worse

In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:

By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.

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In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:

By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.

In the current issue of Commentary, Tevi Troy in “The ObamaCare Debacle Deepens” demonstrates that:

Quite simply, the Roberts opinion took a bad bill and made it worse. If ObamaCare continues to exist in the form Roberts has devised, with much of the mechanism for funding its requirements stripped out, the consequences for the country and for our health-care system may be even more disastrous than they would have been had the problematic law simply been allowed to stand as it was.

But at least the Chief Justice preserved the reputation of the Court from criticism for judicial activism — what a former University of Chicago law school lecturer alleged would have been “an unprecedented, extraordinary step” if it were to “somehow overturn a duly constituted and passed law.”

The fear of such criticism may have been exaggerated: the same week that the Court upheld Obamacare, it overturned a total of 32 out of 33 state and federal statutes — every one of them a duly constituted and passed law. The Court’s reputation apparently suffered no significant damage from enforcing the Constitution in those cases, and in retrospect if might have been better, as Tevi Troy’s essential article shows, if the Court had applied the Constitution to the 33rd as well.

 

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Obama Ignores Own Executive Order on Gitmo Detainee Rights

It seems ages ago that President Obama delivered a speech in the early days of his presidency, suffused with self-righteousness and moral demagoguery, announcing he was closing the Guantanamo Bay prison. Unable to resist the temptation to smear his predecessor’s name with distortions and half-truths, the former law professor summoned all his reckless certainty to educate the American people: “Instead of building a durable framework for the struggle against al-Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law.”

So Obama, who supported the Supreme Court’s precedent-gutting Boumediene decision, which granted non-citizen enemy combatants habeas corpus rights, ordered the facility closed. Because that was an obviously empty promise, Obama added another executive order two years later establishing periodic review for detainees at the prison. And then the wheels came off the Moral Authority Express. It turned out instead of bringing enemy combatants to Guantanamo, where detainees are well-fed and have access to attorneys, Obama has been sending them to a disease-ridden hell-on-earth in Somalia. And the Obama administration began urging the Supreme Court to ignore the detainees’ appeals. And now it seems those periodic review boards were–what would the president call them? Just words:

The Obama administration has begun limiting the legal rights of terror suspects held at the Guantanamo Bay military prison in Cuba, telling a federal judge Tuesday the government alone should decide when the prisoners deserve regular access to their counsel.

In a 52-page filing, Justice Department lawyers said they have started restricting when Guantanamo prisoners can challenge their detention in a Washington-based federal court. If approved, any relaxing of the rules would be made on a case-by-case basis at the exclusive discretion of military officials, not by the courts.

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It seems ages ago that President Obama delivered a speech in the early days of his presidency, suffused with self-righteousness and moral demagoguery, announcing he was closing the Guantanamo Bay prison. Unable to resist the temptation to smear his predecessor’s name with distortions and half-truths, the former law professor summoned all his reckless certainty to educate the American people: “Instead of building a durable framework for the struggle against al-Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law.”

So Obama, who supported the Supreme Court’s precedent-gutting Boumediene decision, which granted non-citizen enemy combatants habeas corpus rights, ordered the facility closed. Because that was an obviously empty promise, Obama added another executive order two years later establishing periodic review for detainees at the prison. And then the wheels came off the Moral Authority Express. It turned out instead of bringing enemy combatants to Guantanamo, where detainees are well-fed and have access to attorneys, Obama has been sending them to a disease-ridden hell-on-earth in Somalia. And the Obama administration began urging the Supreme Court to ignore the detainees’ appeals. And now it seems those periodic review boards were–what would the president call them? Just words:

The Obama administration has begun limiting the legal rights of terror suspects held at the Guantanamo Bay military prison in Cuba, telling a federal judge Tuesday the government alone should decide when the prisoners deserve regular access to their counsel.

In a 52-page filing, Justice Department lawyers said they have started restricting when Guantanamo prisoners can challenge their detention in a Washington-based federal court. If approved, any relaxing of the rules would be made on a case-by-case basis at the exclusive discretion of military officials, not by the courts.

But doesn’t this seem to contradict the point of the administration’s periodic review executive order, which according to CNN has “not been fully implemented”? Indeed it does, and the Obama administration, having misplaced its Hope and its Change and its New Brand of Politics, has a priceless explanation for it: “As a general matter, executive orders are viewed as management tools for implementing the president’s policies, not as legally binding documents that may be enforced against the executive branch.”

This is one reason this administration loves governing by executive order: Not only do the people’s representatives not get a say in the matter, but congressional legislation has the pesky attribute of being legally binding. To the Obama administration, the rule of law is a nice bumper sticker slogan, but in practice it’s for suckers and Republicans. Don’t bother Obama with such trifles–he’s got oceans to lower.

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John Roberts, Chief Sophist

In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

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In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

If Roberts wants to be a political philosopher, a law professor, or a politician, he is free to pursue those vocations. But if he wants to be a Supreme Court justice, he should take those duties seriously. In mixing and matching his responsibilities—in embracing the title of one thing and acting like another—John Roberts ended up as a sophist.

To be a sophist is no crime—but neither does one belong on the Supreme Court, and certainly not as chief justice.

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The Great Miscalculation of John Roberts

Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

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Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

Roberts had good reason to believe his decision to surrender to pressure from the Obama administration and reduce the Court’s power as a supposed equal branch would at least stop the assault on the Court. After all, he held up his end of the bargain. The New York Times waited all of two days to rough Roberts up some more:

The Court’s conservatism calls to mind the defiance of the Court in the 1930s when it regularly struck down New Deal statutes during the Great Depression. But there are important differences. The 1930s Court saw itself as preserving established precedents and principles. The Roberts majority does not have that conservative role. Nor does it play the role of the 1960s Court, whose rulings reinforced a relatively liberal trend in politics.

The current conservatives are not preserving a tradition or articulating a new social consensus. Instead, as the legal historian Robert W. Gordon put it, they have regularly been radical innovators, aggressively stepping into political issues to empower the Court itself.

Roberts extended an open hand to the administration and its allies only to find, as a favorite White House metaphor would have it, a clenched fist. But he shouldn’t have been surprised–nor should he be surprised to read the recent polling showing his Court to have lost some of the public’s respect. Apparently, bowing to pressure and issuing a ruling consistent neither with constitutional law nor public opinion won’t endear him to the people.

But Roberts’s ruling should have at least settled the tax issue. After all, the bill only survives because the mandate must be labeled a tax. When White House Chief of Staff Jack Lew made the Sunday morning talk show rounds, things sounded like they were heading in the right direction for Roberts’s authority. On “Fox News Sunday,” Lew said, “When the Supreme Court rules, we have a final answer.”

So the mandate is a tax, then? Not so fast. Lew meant the constitutionality of the law is settled. As for whether it’s a tax, according to Lew, the Court “said it didn’t matter what Congress called it. It was a penalty for 1 percent.” That is most certainly not what the Court said, but Lew was only repeating what the administration has been saying since the ruling. Press Secretary Jay Carney told reporters a day after the ruling that “You can call it what you want.” But didn’t Roberts call it a tax? Here Carney unleashes the chutzpah:

“With regard to the penalty as was discussed by Chief Justice Roberts in his opinion, for those who could afford health insurance but choose to remain uninsured — forcing the rest of us to pay for their care — a penalty is administered as part of the Affordable Care Act.”

Conservatives may find this maddening, but the worst part of the Carney story is how the reporter framed the debate. The White House, he wrote, “is aggressively fighting back against Republican claims that ObamaCare contains a tax increase.” (Italics are mine.) Far from settling the question, then, Roberts’s decision has rendered the Court’s opinion irrelevant. The debate about ObamaCare continues as if there were no Supreme Court ruling, only now there’s no judicial oversight waiting on the horizon. Roberts seems to have accomplished nothing with this ruling except diminishing the Court’s standing.

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Was Roberts’ Opinion Only an Essay?

As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

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As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

You can tell how the Court’s liberal bloc views Roberts’ Commerce Clause opinion by the way Justice Ginsburg describes it in the portion of her opinion that was joined by the three other liberal justices. She calls it the “Chief Justice’s Commerce Clause essay;” depicts it as his “puzzling” attempt “to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy;” and concludes that because he ultimately upholds the mandate as a tax, she sees “no reason to undertake a Commerce Clause analysis that is not outcome determinative.”

This is legal language indicating her view that the “puzzling” Commerce Clause opinion of the chief justice can be ignored, as it is not a holding of the Court. The Court’s leading liberal has served notice how the Court will treat the chief justice’s views on the Commerce Clause if a fifth liberal is ever appointed to the Court: as an essay, not a binding precedent.

Of course, if all that is necessary to sustain any federal mandate is to accompany it with a “shared responsibility payment” for those unwilling to abide by it, not only the chief justice’s essay but the entire Commerce Clause is irrelevant. In legalese, the Commerce Clause is “not outcome determinative.”

And under the portion of the Roberts opinion that does in fact speak for the Court, the new “shared responsibility payment” power of Congress is the law of the land. It is hard to think of a broader power than the one the chief justice established, speaking for a Court supposedly concerned about overreaching its authority.

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Obama’s Systematic Assault on the Truth

The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

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The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

As this story put it:

Chief Justice John G. Roberts Jr. said the Court had a duty to uphold an act of Congress if there was a constitutional basis for doing so. And the basis he seized on was the fallback argument [Solicitor General Donald] Verrilli included in the briefs—that the Constitution gives Congress a broad power to impose taxes to “provide for the general welfare.”

The government’s legal brief said the insurance mandate operates in practice as a tax law. No one would be prosecuted or punished for not having insurance. If they had taxable income, however, they would be forced to pay a small tax penalty.

The chief justice agreed with this argument, and so did the four liberal justices. Though Congress may not “order” people to buy insurance, Roberts held in the 5-4 decision, it may impose a small tax on those who refuse.

The Affordable Care Act, then, was upheld as constitutional based on the tax argument put forward by President Obama’s legal team. And yet the Obama administration is now insisting the Affordable Care Act never was a tax, is not now a tax, and shall never be a tax.

This is yet another example of how Barack Obama is a thoroughly post-modern president. Words and facts have no objective standing; they are relative, socially constructed, a way to advance personal reality. If referring to the Affordable Care Act as a tax helps advance the Obama agenda, then it’s a tax. If referring to the ACA as a penalty helps advance the Obama agenda, it becomes a penalty.

You like tomato and I like tomahto.

That philosophy may be fine for liberal arts professors and even tolerable among community organizers. But when the president of the United States systematically assaults truth—if words mean whatever you want them to mean—it becomes rather more problematic. Yet that is precisely where the United States finds itself in the summer of 2012.

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Why Upholding ObamaCare Will Badly Damage Obama’s Reelection Chances

Having already written about the majority opinion by Chief Justice Roberts, what about the politics of the decision?

I have argued before that while overturning the Affordable Care Act (ACA) would be a debilitating blow to the president, upholding it would create problems of its own. And that’s certainly the case.

For one thing, as others at “Contentions” have pointed out, the president is now saddled with a huge middle class tax increase. Anchoring the Affordable Care Act in the Tax Clause is the only way it passed constitutional muster—and Republicans will do everything in their power to tether Obama to his tax increase. It doesn’t help the president that the argument that saved ObamaCare contradicted what Obama himself repeatedly said, which is (a) the individual mandate is “absolutely not a tax increase” and (b) he would never in a thousand years raise taxes on the middle class.

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Having already written about the majority opinion by Chief Justice Roberts, what about the politics of the decision?

I have argued before that while overturning the Affordable Care Act (ACA) would be a debilitating blow to the president, upholding it would create problems of its own. And that’s certainly the case.

For one thing, as others at “Contentions” have pointed out, the president is now saddled with a huge middle class tax increase. Anchoring the Affordable Care Act in the Tax Clause is the only way it passed constitutional muster—and Republicans will do everything in their power to tether Obama to his tax increase. It doesn’t help the president that the argument that saved ObamaCare contradicted what Obama himself repeatedly said, which is (a) the individual mandate is “absolutely not a tax increase” and (b) he would never in a thousand years raise taxes on the middle class.

It was, and he has.

In addition, the decision by the Court to uphold the Affordable Care Act has once again thrust to center stage a historically unpopular law (one that is particularly unpopular in swing states).

The Supreme Court, then, has succeeded in once again inflaming the passions of the GOP base while reminding independents why they despise the ACA. The 2012 election may now take on a 2010 feel. And for those who might have forgotten, Democrats—thanks in large part to Obama’s health care law—sustained an epic defeat in that mid-term election.

As it was, so may it be.

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The New “Shared Responsibility” Power

So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act – to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

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So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act – to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

Over at SCOTUSblog, Ilya Shapiro’s perceptive post is entitled, “We won everything but the case.” It is worth reading in its entirety. Scott Rasmussen notes that ObamaCare has already lost in the court of public opinion. The electorate will have the opportunity to use its own constitutional power in 130 days.

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