Commentary Magazine


Topic: U.S. Supreme Court

Liberal Gerrymander Myth Will Be Exposed

In yet another instance of the U.S. Supreme Court twisting the plain meaning of the words of the Constitution, a 5-4 majority ruled that states could bypass their legislatures to create commissions to determine Congressional districts. The U.S. Constitution states specifically, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof,” but, in writing for the majority, Justice Ruth Bader Ginsburg argued that “legislature” can mean a referendum. That’s absurd, but after a week in which “by the states” can be translated as “by the federal government” (Chief Justice Roberts on ObamaCare) and an amorphous concept not mentioned in the Constitution such as “dignity” can be used as justification for overturning state laws (Justice Kennedy on gay marriage), what’s one more legal fiction if it gets a liberal majority what it wants? As with those other two cases, this has excited a lot of liberals who believe, as Paul Blest writes in The New Republic, that this decision can lead to a political earthquake that could eventually give the Democrats back control of the House of Representatives. But unlike the other decisions that will help transform the world to conform to liberal preferences, this one is bound to disappoint the left. The reason why Republicans seem to have acquired a lock on the House has less to do with the gerrymander myth that claims the GOP wins by cheating than it does to with population patterns and the Voting Rights Act.

Read More

In yet another instance of the U.S. Supreme Court twisting the plain meaning of the words of the Constitution, a 5-4 majority ruled that states could bypass their legislatures to create commissions to determine Congressional districts. The U.S. Constitution states specifically, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof,” but, in writing for the majority, Justice Ruth Bader Ginsburg argued that “legislature” can mean a referendum. That’s absurd, but after a week in which “by the states” can be translated as “by the federal government” (Chief Justice Roberts on ObamaCare) and an amorphous concept not mentioned in the Constitution such as “dignity” can be used as justification for overturning state laws (Justice Kennedy on gay marriage), what’s one more legal fiction if it gets a liberal majority what it wants? As with those other two cases, this has excited a lot of liberals who believe, as Paul Blest writes in The New Republic, that this decision can lead to a political earthquake that could eventually give the Democrats back control of the House of Representatives. But unlike the other decisions that will help transform the world to conform to liberal preferences, this one is bound to disappoint the left. The reason why Republicans seem to have acquired a lock on the House has less to do with the gerrymander myth that claims the GOP wins by cheating than it does to with population patterns and the Voting Rights Act.

Gerrymandering is almost as old as the republic, but it has always had a bad reputation. Both Democrats and Republicans have carved up states in bizarre patterns in order to maximize political advantage for one party or the other. But in recent years, as the GOP won midterm landslides that gained them control of the majority of state houses around the country, Republicans have had the opportunity to do more gerrymandering than Democrats.

Blest’s piece gives as good a summary of the gerrymander myth as can be found. In short, he blames the Republican victory in 2010 as enabling them to steal seats in Pennsylvania and Ohio by coming up with districts with “nonsensical formations.”

The effects of that redistricting were noticeable in 2012 when, despite easily holding the White House, adding to their Senate majority, and winning the popular vote in the House by over 1 million votes, Democrats only won back eight congressional districts. In Ohio, two longtime progressive members of Congress, Marcy Kaptur and Dennis Kucinich, were drawn into the same district, the boundaries of which are objectively ridiculous. After the 2012 election in Michigan, where Obama won by nearly ten points, Republicans held nine seats to just five for Democrats. And in Pennsylvania, the GOP picked up two seats despite Obama’s winning the state by over 300,000 votes and Senator Bob Casey’s winning re-election by an even wider margin. This process wasn’t limited to Republicans, either—they just had more opportunities to do it.

But while the GOP took advantage of their chance to redraw districts where they could, the sea change in House elections dates back more than two decades to the early 1990s when redistricting helped play a role in ending an almost unbroken 60-year streak (1946-48 and 1952-54 being the only brief exceptions) when Democrats controlled the House. Since then, the House has been generally trending to the Republicans, and they’ve run things other than Nancy Pelosi’s four-year reign from 2006-2010. But what happened in 1992 wasn’t the result of a vast GOP gerrymander. It was the result of court decisions interpreting the Voting Rights Act that demanded that states create minority-majority districts that would vastly expand the number of African-American and Hispanic members of the House. That effort succeeded brilliantly but though almost all of these members were Democrats, this triumph came at the expense of their party.

In the past, when Democrats had the chance to draw districts, they’d take advantage of the situation by trying to include areas with a high minority population in competitive districts. Since blacks were — and still are — an essential part of the base of the Democratic party, once they were concentrated into minority-majority districts, that left swing districts overwhelmingly white and as a consequence, far more likely to be won by Republicans. Moreover, the minority districts were far more “nonsensical” than anything any Republican or even Elbridge Gerry (after whom the practice is named) could have even dreamed of as they stretch across states and cross normal country and even geographic boundaries in order to corral as many minorities as possible into one district.

As Nate Cohn notes in the New York Times Upshot blogs, the Democrats’ dominance in urban districts with mostly minority voters inflates their national vote total in Congressional elections. But it does them little good to win inner city districts in cities by 8-1 margins while losing most of the competitive seats by close margins. What Cohn calls a “wasted vote problem” means that Democrats can win states like Pennsylvania decisively while losing the majority of Congressional seats.

The court, to the approval of liberal strongholds like the New York Times editorial page, believes good government pieties about non-partisanship will always favor the Democrats. But the liberal faith that supposedly non-partisan commissions such as the one created in Arizona will solve their problems is misplaced. Even non-partisan districts are always going to favor Republicans in states with minority and urban populations. Unless those commissions are prepared to break up minority districts and cost black and Hispanic politicians their jobs — something that is not only politically impossible but would be considered illegal by the courts — the fundamental GOP advantage will remain.

Moreover, as Cohn points out, instead of looking to the courts to win them victories they can’t achieve on their own, Democrats might do better to forget about commissions and concentrate on winning back state houses before the next census sets off the next round of redistricting. If the GOP wins the presidency in 2016, that might set up 2018 as the moment when Democrats might take advantage of the midterm pattern that gives the party out of power the edge. Of course, that means no President Hillary, so Democrats don’t even want to think about it.

But the most important lesson to be learned from this subject is that while redrawing districts can give political parties help, such devices are no substitute for popular support. If Democrats want to win back the House, they’ll have to do it at the ballot box winning swing districts and not by judicial fiat.

Read Less

What Can Conservatives Do About the Gay Marriage Decision?

In the wake of Friday’s decision by the U.S. Supreme Court to recognize same-sex marriage as a constitutionally protected right, a lot of conservatives are fumbling for an effective response. So far, the results are far from encouraging. Understandably social conservatives feel marginalized. But the majority’s shaky legal reasoning rightly discourages even those on the right who have no strong feelings against gay marriage or actually support it. The willingness of Justice Anthony Kennedy and his four liberal colleagues to bypass both the legislative process and the verdict of voters (both of which were trending in the direction of the pro-gay marriage movement) in order to make new law with only a tenuous connection to constitutional principles strikes even libertarians who are pleased with the results of the decision as a dangerous usurpation of authority. But how can any political movement or party successfully fight on an issue where both popular culture and the political environment have both shifted against you? To listen to some prominent voices, the choices facing the right seem to boil down to impotent rage or sullen silence about the gay marriage decision. But here are four simple suggestions that offer Republicans a way out of what seems a lose-lose situation.

Read More

In the wake of Friday’s decision by the U.S. Supreme Court to recognize same-sex marriage as a constitutionally protected right, a lot of conservatives are fumbling for an effective response. So far, the results are far from encouraging. Understandably social conservatives feel marginalized. But the majority’s shaky legal reasoning rightly discourages even those on the right who have no strong feelings against gay marriage or actually support it. The willingness of Justice Anthony Kennedy and his four liberal colleagues to bypass both the legislative process and the verdict of voters (both of which were trending in the direction of the pro-gay marriage movement) in order to make new law with only a tenuous connection to constitutional principles strikes even libertarians who are pleased with the results of the decision as a dangerous usurpation of authority. But how can any political movement or party successfully fight on an issue where both popular culture and the political environment have both shifted against you? To listen to some prominent voices, the choices facing the right seem to boil down to impotent rage or sullen silence about the gay marriage decision. But here are four simple suggestions that offer Republicans a way out of what seems a lose-lose situation.

First, don’t try to fight a battle you can’t win. Let’s face it, even if you think the gay marriage decision was an affront to your religious beliefs and/or your constitutional principles, there simply is no getting around the fact that most Americans seem to be well pleased with it. It’s true that a liberal popular culture echo chamber is orchestrating the way everything in the country seems to be bathed in rainbow hues the last few days. But if a critical mass of Americans hadn’t already come to the conclusion that treating the desire of two men or two women to have the state recognize their union as a marriage, the scrapping of traditional notions about the institution wouldn’t have succeeded. The plaintiffs in the case won because they appeared as ordinary citizens seeking equal rights rather than as radicals or revolutionaries. That is something that conservatives must accept. Any response to such an appeal that doesn’t sympathize with those sentiments and recognize their power is bound to come across as hard-hearted if not bigoted. Conservatives may be forgiven for not understanding how things could change so quickly but whereas support for gay marriage was restricted to the margins of our political life only a few years ago (isn’t that right former gay marriage opponents Barack Obama and Hillary Clinton?), it now commands the support of most voters. Any response to the decision that isn’t rooted in that fact is a formula for political disaster in terms

Second, don’t let this issue become a defining issue for 2016. Nevertheless, that is advice some presidential candidates will ignore and with good reason. Some, like Ted Cruz, Mike Huckabee, Bobby Jindal and Rick Santorum see anger about the decision as a way to get social conservative voters motivated to go out and vote. That may work for them in the primaries, but other Republicans should be wary about their citing the 2004 election as the reason why their anger on the issue should be the keynote of the GOP in 2016. It’s true that revulsion at the thought of changing the law to legalize gay marriage helped mobilize support for George W. Bush’s re-election campaign as conservatives turned out in numbers that exceeded their showing in the next two presidential campaigns. But while Republicans failed to energize their base in 2008 and 2012, sensible conservatives understand the ground has shifted on them since 2004. The GOP can win in 2016 but not by pushing the same buttons they used then. The economy and foreign policy after eight years of President Obama’s disastrous policies offer better options for winning issues. The next president doesn’t have to be a fan of the Supreme Court’s decision (and none of the Republicans are) and can back traditional marriage, but that can’t be a major theme of the campaign if the GOP is to win the independent votes they need to carry swing states.

Third, conservatives must defend, not fight the Constitution. The willingness of Bobby Jindal and Ted Cruz to talk about changing the way the high court is chosen or altering the tenure of the justices is red meat for the base but it is also the opposite of the tone conservatives should adopt. The same goes for Scott Walker’s talk about a constitutional amendment opposing the gay marriage decision.

Everybody gets angry at the Supreme Court and often with good reason. That is especially true after a week in which Chief Justice twisted himself into a pretzel in order to find a reason to keep ObamaCare operating and his fellow conservative Justice Anthony Kennedy adopted a tone in his gay marriage decision that made him seem more like a pop culture philosopher or advice columnist than a constitutional scholar.

But anyone who tries to alter the composition of the court by extreme measures always loses the argument. The Founders would not recognize the legal reasoning used at times by Roberts, Kennedy, and the four liberals who are always happy to accept their votes to form a majority. But the role of the judiciary in our constitutional system must be respected. Conservatives who start to sound like a latter-day version of those who wanted to impeach former Chief Justice Earl Warren because of his liberal decisions are marginalizing themselves.

Fourth, and most important, defend religious liberty. As many Republicans have learned on the issue of abortion. Attacking what most Americans think is reasonable — legal abortion in the first months of a pregnancy — isn’t a political winner. But seeking to halt late term abortions that strike an equally large majority as akin to infanticide is both reasonable and puts liberals in the position of having to defend the indefensible.

The same principle applies to gay marriage. Stopping gays from marrying is a political loser, but defending the rights of religious institutions, schools, and ordinary citizens to defend their religious principle that demand they either avoid involvement or sanction in such ceremonies is strong ground to defend. As I wrote last week, the court’s willingness to adopt such a broad conclusion about marriage at the Constitution puts believers in peril of being not just outliers but outlaws. Will schools that ban gay relationships or cohabiting or not recognize gay partners be branded as law-breakers and deprived of tax-exempt status? This issue came up in the oral arguments earlier this year before the court, and the statements of Solicitor General Donald Verrilli make it clear that no one and nothing is safe from the long arm of the law when it is arrayed against liberal orthodoxy, even a newly-minted one like that in favor of gay marriage.

The only thing preventing such an outrageous abuse of government power right now is the whim of the president and the Justice Department that could use the court’s decision in any way it likes. The challenge for the GOP is to stake out the moral high ground in which it can seek to limit the ability of big government liberals to bully those who aren’t interfering with the right of gays to marry but don’t wish to be co-opted by it. You don’t have to be opposed to gay marriage to recognize this threat just as you didn’t have to be against contraception to realize that compelling those who opposed it to pay for it against their will was an affront to religious freedom.

If conservatives stick to these principles, they may not be able to reverse something that most of their fellow citizens back. But they will limit the damage, both to the law and to their political chances in 2016.

June-2015-Promotion_animation

Read Less

Wait Until 2017? ObamaCare Likely to Live Forever Now

Just as he did three years ago in the original case affirming the constitutionality of President Obama’s signature health care legislation, Chief Justice John Roberts found a way to avoid having the U.S. Supreme Court bear the responsibility for stopping the Affordable Care Act. By declaring that the language in the law saying that insurance subsidies would be made available in exchanges “established by the states” was ambiguous rather than a seemingly straightforward rule, the chief justice allowed the subsidies to continue coming directly from the federal government in the states where no exchanges were set up. Today’s decision in King v. Burwell is a huge victory for President Obama’s legacy and assures ObamaCare’s survival unless Republicans are able to repeal it by taking the presidency and retaining control of Congress in 2016, and even then it is not certain that they’d be able to repeal it without coming up with a viable alternative, something they are unlikely to be able to do. But it is also a tactical political win for the GOP since the overturning of the subsidies would have put Congress in a position of having to come up with a fix that would have allowed millions of Americans to keep their insurance.

Read More

Just as he did three years ago in the original case affirming the constitutionality of President Obama’s signature health care legislation, Chief Justice John Roberts found a way to avoid having the U.S. Supreme Court bear the responsibility for stopping the Affordable Care Act. By declaring that the language in the law saying that insurance subsidies would be made available in exchanges “established by the states” was ambiguous rather than a seemingly straightforward rule, the chief justice allowed the subsidies to continue coming directly from the federal government in the states where no exchanges were set up. Today’s decision in King v. Burwell is a huge victory for President Obama’s legacy and assures ObamaCare’s survival unless Republicans are able to repeal it by taking the presidency and retaining control of Congress in 2016, and even then it is not certain that they’d be able to repeal it without coming up with a viable alternative, something they are unlikely to be able to do. But it is also a tactical political win for the GOP since the overturning of the subsidies would have put Congress in a position of having to come up with a fix that would have allowed millions of Americans to keep their insurance.

As it was in 2012, one has to try and read between the lines to understand the tortured reasoning supporting Roberts’ majority opinion. The assertion that the plain English of “established by the states” is hard to credit. But, like his insistence that ObamaCare mandates were a tax (a position that neither the government nor those suing to have it overturned held) rather than a clearly unconstitutional infringement of the Constitution, Roberts has managed to come up with a rationale that allows the court to let ObamaCare survive in spite of the strong legal reasons why it should be halted. Yet, in doing so, rather than keeping the court out of politics, the chief justice has actually done more to undermine its credibility than any controversy stemming from its overturning of the statute would have done. In his stinging and brilliant dissent, Justice Antonin Scalia rightly says that the law ought now to be called “SCOTUScare” rather than ObamaCare since it is only alive due to the judicial somersaults that Roberts turned to keep it going. The idea that the court upholds the law without respect to political fears was always a tenuous hope, but now it is completely dead.

As for the future of the law, it must be conceded that the chances are good that it is now a permanent part of the country’s legal landscape. Should Republicans sweep both Congress and the presidency next year, it is likely they would take up repeal in January 2017. But just as the possibility of the subsidies being taken away set off a divisive battle inside the GOP over what to do about the plight of the millions who would then lose their insurance, repeal is no longer merely a matter of starting over from scratch. Any attempt to overturn a law that would have already been in operation for years will be a perilous undertaking fraught with political danger for Republicans. Their presidential candidates will all pledge to throw it out in the coming campaign, but that will be easier said than done. The odds are that John Roberts has ensured that this legal monstrosity will live forever.

In the short term ObamaCare survival is a boost for Republicans since a win for the plaintiffs would have meant that Congress would have been forced to wrestle with the difficult problem of finding a patch that would have let the subsidies stay in place. That would have been an impossible task as conservatives would never have endorsed anything that let ObamaCare linger on in any form, and the president wouldn’t have signed even the most reasonable of compromises. Their inevitable failure to deal with the problem would have given Democrats a powerful cudgel with which they could have abused the GOP next year. The millions who lost their insurance as a result of the overturning of the subsidies would have become poster children for Republican heartlessness.

But while they may be breathing a sigh of relief over dodging this bullet, conservatives should be mourning what Roberts has done in his two ObamaCare decisions.

By twisting itself into a pretzel in order to let the law stand, the court has allowed the Democrats to massively expand the power and the reach of government in ways that we are only just beginning to understand. The ObamaCare mandates create a dynamic that does more than offer cheap insurance to more people than would have otherwise been covered. It also allows the federal government to embark on a path in which it will be making far-reaching decisions about the future of American health care. It has already created rules that infringe on religious liberty and create distortions in the marketplace that will lead to massive increases in premiums while also losing jobs. While many, especially among the poor, are net winners, it has also created a large number of net losers who will never be compensated for the president’s broken promises about keeping their insurance and doctors if they liked them.

President Obama’s legacy as the man who pushed a health care law through Congress that few understood is now secure. Some Americans will benefit from this, but many others will be paying dearly for this unwieldy law. Most of all, future generations will recognize the court’s decisions as a crucial moment when our liberties were diminished. That is something for which all those involved in passing and preserving this disaster should be held accountable by history, if not the ballot box.

June-2015-Promotion_animation

Read Less

ObamaCare, SCOTUS and the Constitution

Yesterday’s Supreme Court hearing on the King v. Burwell challenge to ObamaCare produced a lot of the usual tealeaf reading from SCOTUS watchers. Most of those who commented on the proceedings concentrated on trying to figure out the outcome by interpreting the comments from the bench. There seems little doubt that seven of the judges’ votes are already a given with the four liberals lining up behind the legality of the federal subsidies being given to consumers in states that did not set up their own ObamaCare exchange and three conservatives believing them to contradict the text of the law. That means the speculation centers on the thinking of Justice Anthony Kennedy, the court’s usual swing vote and that of Chief Justice John Roberts, who usually lines up with the other conservatives but abandoned them in 2012 in order to register an illogical opinion that allowed ObamaCare to survive a constitutional challenge that was far more substantial than the one put forward in the current case. That means there’s no telling how the case will be decided. But if Roberts does another ideological somersault in order to avoid getting the court in the middle of a political tangle it will be another telling blow to the system of checks and balances created by the Founders.

Read More

Yesterday’s Supreme Court hearing on the King v. Burwell challenge to ObamaCare produced a lot of the usual tealeaf reading from SCOTUS watchers. Most of those who commented on the proceedings concentrated on trying to figure out the outcome by interpreting the comments from the bench. There seems little doubt that seven of the judges’ votes are already a given with the four liberals lining up behind the legality of the federal subsidies being given to consumers in states that did not set up their own ObamaCare exchange and three conservatives believing them to contradict the text of the law. That means the speculation centers on the thinking of Justice Anthony Kennedy, the court’s usual swing vote and that of Chief Justice John Roberts, who usually lines up with the other conservatives but abandoned them in 2012 in order to register an illogical opinion that allowed ObamaCare to survive a constitutional challenge that was far more substantial than the one put forward in the current case. That means there’s no telling how the case will be decided. But if Roberts does another ideological somersault in order to avoid getting the court in the middle of a political tangle it will be another telling blow to the system of checks and balances created by the Founders.

ObamaCare defenders have tried to argue that the challenge to the law is a narrow technicality that ought not to invalidate the president’s signature health care legislation. From the frame of reference of most liberals, the Affordable Care Act is, however flawed it might be, another step on the inevitable path to an enlightened society that the left has been pulling the country toward for the last century. The idea of striking down a key element of the enforcement of a law simply because it is contradicted by the text of the legislation strikes them as unfair as well as bad policy.

This is hypocritical cant since Roberts’ decision that validated the law’s constitutionality was itself based on a technicality — the notion that it was a tax even though its authors and the president claimed it was nothing of the kind — and liberals cheered rather than complained about the convoluted and narrow reasoning behind the decision.

But the claim that the absence of language in the statute that would authorize the federal government to set up exchanges in states that refused to operate them is a technicality is a false argument. The legislative history shows that the intent was to force states to run the exchanges and that having Washington step in where they didn’t was contrary to its purpose.

That means the outcome of King v. Burwell hinges on whether a majority of justices think the purpose of the Supreme Court is to interpret the laws as they were written or to simply judge them on the desires of the political forces that back the program. Four liberals say to hell with the text of the law. Three conservatives say the law must be judged by its text not the desire of the administration to see its unpopular achievement preserved in spite of its obvious shortcomings.

That leaves Kennedy and Roberts to decide whether they are prepared to do what the Court couldn’t bring itself to do in 2012: take a stand on the Constitution even if it meant that their institution would be seen as responsible for an outcome that would offend one half of the electorate.

Interpretations of Roberts’ bizarre opinion on the original ObamaCare case have been all over the map but it’s hard to avoid the conclusion that the chief justice was convinced it would be bad for the high court if it decided something that would better be determined by the voters. He seemed to be challenging the country in his opinion (which confirmed that the law violated the Commerce clause but then said it was alright because it was a tax) to make up their own minds on the law by either voting for President Obama or his opponent Mitt Romney who vowed the law’s repeal would be his top priority.

This is not the first time in history the Supreme Court has gotten out of the way and let the politicians and the voters decide major issues. But for Roberts to find two separate excuses to defy logic and render something legal that is clearly anything but would be egregious.

It’s easy to sympathize with Roberts’ desire to avoid having a court with a narrow conservative majority be seen as partisans in the way it did when Bush v. Gore was decided. If the court is to punt every time the fates put it in a position to perform its constitutional obligation to provide a legal check to the legislative and executive branches, why do we have a judiciary? It is the duty of the court to speak up when Congress or the president overstep their power or create laws that don’t stand up to scrutiny. If Roberts is going to decide King v. Burwell on the same bizarre lines that he used last time, it will do more damage to the court than any political brickbats that are tossed in its direction by angry supporters of the president.

If Roberts and Kennedy honestly thinks the federal exchanges are legal, then they should rule accordingly. But if they don’t but let them stand for fear of being criticized then they will deserve the opprobrium that conservatives and posterity will heap on them.

Read Less

Don’t Underestimate Gruber’s OCare Impact

Liberals are in retreat this week as they recover not only from the historic defeat suffered by Democrats in last week’s midterms but also from the fallout from Jonathan Gruber’s confessions about the deceit at the heart of the effort to pass ObamaCare. The three videos that have surfaced in which Gruber strips away the veil of lies from the campaign to pass the misnamed Affordable Care Act is a major embarrassment for the administration. But while many on the right are treating this as a smoking gun that should doom President Obama’s health-care legislation to repeal, liberals are confident that this storm will pass and that the law will survive. But while they are right that nothing—not even a similar admission from the president himself—could wipe it away, they are wrong to think Gruber’s statements haven’t significantly altered the debate and may yet play a crucial role in its destruction.

Read More

Liberals are in retreat this week as they recover not only from the historic defeat suffered by Democrats in last week’s midterms but also from the fallout from Jonathan Gruber’s confessions about the deceit at the heart of the effort to pass ObamaCare. The three videos that have surfaced in which Gruber strips away the veil of lies from the campaign to pass the misnamed Affordable Care Act is a major embarrassment for the administration. But while many on the right are treating this as a smoking gun that should doom President Obama’s health-care legislation to repeal, liberals are confident that this storm will pass and that the law will survive. But while they are right that nothing—not even a similar admission from the president himself—could wipe it away, they are wrong to think Gruber’s statements haven’t significantly altered the debate and may yet play a crucial role in its destruction.

Writing for the Washington Post’s The Fix column, Aaron Blake writes to claim that no matter how much they scream about the videos of Gruber in which he acknowledges that the law was drafted so as to deceive members of Congress, the Congressional Budget Office, and the American people (whose “stupidity” ensured its passage), it won’t have an impact of the future of ObamaCare.

Blake is probably right when he says the debate about the law is already so polarized that nothing will alter the opinions of those who are for or against it. However, in citing the consistency of the polling on the legislation, he should also note that a majority of Americans have always opposed it. This runs contrary to the expectation of both hopeful liberals and fearful conservatives that once implemented, the ACA would become as popular as Social Security or Medicare.

That didn’t happen because unlike those government programs, which were controversial when first suggested but ultimately accepted by everyone, not everyone benefits from ObamaCare. Indeed, there may ultimately be as many, if not more Americans who are net losers from the law than there are winners who now have health insurance. While the disastrous rollout of the law and the exposure of President Obama’s lies about allowing consumers to keep their insurance and doctors if they liked them has already done damage to its reputation, once the more unpopular individual mandates are imposed in 2015 (they were postponed by the president in order to avoid more damage to Democrats in the midterms) and insurance rates start to skyrocket, ObamaCare isn’t going to be winning more fans.

Blake’s also right that this isn’t the first evidence of deceit on the part of the Democrats who passed the law in a party-line vote. Then House Speaker Nancy Pelosi’s infamous line about the law having to be passed in order “to find out what’s in it” is probably just as bad as anything Gruber said.

Moreover, his conclusion that the law will, in one form or another, remain on the books until 2017 at the earliest, is also inarguable. Repeal or a complete restructuring of the scheme will require a Republican-controlled Congress and a Republican in the White House, something that can’t happen until President Obama’s term in office is over.

But, even if we acknowledge all of this, it must be understood that Gruber’s comments illustrate one basic fact of American political life that liberals have a hard time accepting: the debate about ObamaCare is not only not over, it’s just getting started.

The president and other Democrats have been fond of mocking the GOP-controlled House of Representatives’ repeated votes on repeal. Each such vote was a futile exercise in symbolism since the Democrats still had the Senate and the White House. Further, such votes won’t be any more useful as long as Obama remains in office and Republicans lack a veto-proof majority.

But the impact of the law’s full implementation will, like it or not, generate plenty of debate about how to fix a scheme that is bound to cause more damage in the next two years. This will keep the ObamaCare debate alive and well. And anyone who thinks the Gruber comments won’t be endlessly thrown in the faces of the law’s defenders isn’t paying attention. That matters because whatever the American people think about the law, and most have always rightly disliked it, they don’t like being played for saps by elitist liberals. That means the Gruber admissions will be a gift that keeps on giving for Republicans right through the 2016 elections.

However, the greatest impact of this may be, as Blake acknowledges in passing, on the Supreme Court’s decision in King v. Burwell, the lawsuit that alleges that federal subsidies given in states that don’t have their own insurance exchanges as mandated by the law are illegal. Gruber’s comments illustrate that the insistence on each state having one isn’t, as Paul Krugman alleged earlier this week, a mere “typo” but a glaring flaw in the law that could sink the whole scheme.

In 2012, Chief Justice John Roberts sided with the court’s liberals and ruled ObamaCare constitutional in an opinion that led many to believe he thought it best to keep the Supremes out of a health-care debate that should be decided by the voters and Congress. What the White House should be most worried about is not the way Gruber’s candor is playing on the cable news channels but in Roberts’ mind. The open talk about the lies that led to the legislation’s passage might be enough to convince the chief justice to go along with conservatives who rule against the government and bring the ACA crashing down long before the GOP is able to finish the job.

If so, Gruber will have earned himself a place in American political history as the man whose honesty about his lies took down Obama’s greatest accomplishment.

Read Less

ObamaCare: Live by a Typo. Die By It.

New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

Read More

New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

Let’s specify up front that Krugman isn’t entirely wrong that the substance of this case rests entirely on a technicality. As I noted in October when a federal court in Oklahoma ruled against the ACA on this issue, the anomaly by which the law granted subsidies only for state exchanges was not necessarily intended by those who drafted the law although there was some dispute about funding for the subsidies. But the Democratic majorities that crammed this legal monstrosity through both houses of Congress were not that interested in its content. As then House Speaker Nancy Pelosi famously said, the law had to be passed before anyone would know what was in it.

The idea that it could be scuttled by a drafting error strikes Krugman as a terrible injustice that would not be permitted if sensible people were staffing the judiciary. He likens the prospect of ObamaCare’s destruction on such a seemingly minor point to the discovery of a mistake made in the filing of the deed of his parent’s home which might have left his mother’s garden outside of their property. But there are two points that serve to render his complaint both hypocritical as well as insubstantial.

The first is that the ACA was judged to be constitutional on a technicality that was far more bogus than the one about state and federal exchange subsidies. In 2012, the Supreme Court ruled in favor of the constitutionality of the law on a narrow 5-4 vote. But the deciding fifth vote cast by Chief Justice Roberts was based on his belief that the entire thing could be construed as a tax and that this allowed the federal government to act in this manner. The other eight justices had divided evenly on the question that both the plaintiffs and those defending the government had thought was at issue: whether ObamaCare was an unconstitutional breach of the Commerce Clause that would have unlawfully forced citizens to engage in commerce. Roberts agreed with the four other conservative judges that the challenge to its constitutionality on this point was valid but concocted the tax argument in order to keep the high court out of an issue that he appears to believe should only be decided by Congress and the voters.

At the time, conservatives howled at the absurd nature of Roberts’s argument that allowed a blatantly unconstitutional piece of legislation to survive. In response, liberals merely crowed at their victory and reminded their opponents to respect the rule of law whether they liked the outcome or not.

Two years later, it appears the shoe is on the other foot and all of a sudden liberals like Krugman no longer think it’s right for laws to be narrowly decided in an arbitrary manner that hangs on legal technicalities or bizarre interpretations of the law. But there is more here at play than turnabout being fair play.

Krugman falsely argues that the law is working well, something that is given the lie by the fact that much of its substance has been delayed until next year so as to give Democrats a better chance in the midterms as well as its rollout. Contrary to the president’s false promises, Americans were not allowed to keep their insurance or their doctors, if they liked. The increases that many will suffer next year, as well as the potentially devastating impact on employment, once the individual mandate begins to be enforced also destroys his premise. But even if we accept that some will lose benefits they have been given under the law, that shouldn’t motivate the court to ignore the contradiction in the text.

At the heart of the current case is a question of what it means to pass a law. Laws are not merely amorphous notions but actual documents that must be drafted carefully lest some odd anomaly in their language allow governments to exploit the citizens or individuals to profit unfairly. If the text doesn’t actually matter, then the government may interpret them in any way it likes to the detriment of the rights of all Americans.

Seen in that light, Krugman’s railing at the “typo” and the “corruption” involved in this case that should—if Roberts doesn’t invent some even more absurd rationale to save ObamaCare again—destroy the president’s principal legislative achievement doesn’t seem so reasonable. At stake here is not just the future of health care or a president’s legacy, but also the rule of law.

Without the rule of law, there is no individual liberty or democracy. It is on that ground, if nothing else, that the Supreme Court should rule against the government. If it doesn’t, the corruption will not so much be liberal hypocrisy but their agenda that seeks to trash this basic principle of accountability.

Read Less

SCOTUS and ObamaCare: Round Two

The Supreme Court today granted certiorari in the case of King v. Burwell, in which several senators and congressmen and an assortment of non-governmental organizations such as the Cato Institute and several states sued, claiming that the IRS interpretation of the Affordable Care Act was contrary to the plain text of the law.

Read More

The Supreme Court today granted certiorari in the case of King v. Burwell, in which several senators and congressmen and an assortment of non-governmental organizations such as the Cato Institute and several states sued, claiming that the IRS interpretation of the Affordable Care Act was contrary to the plain text of the law.

The ACA grants subsidies to people with lower incomes who buy insurance through the exchanges “established by the states.” Since only 16 states set up such exchanges, the federal government stepped in and set up exchanges in the other 34 states. But the IRS has ruled that the subsidies are available through these exchanges as well.

The plaintiffs lost in both the district court and in the 4th Circuit, which sits in Richmond.  Both courts argued that the act as a whole shows that Congress’s intent was not to limit subsidies only to state exchanges. The fact that the Supreme Court agreed to hear the case does not necessarily mean that it disagrees with the lower court, only that at least four justices want the Supreme Court to finally decide the case.

But it is very interesting indeed that the Court did not wait for the en banc hearing in the D.C. Circuit Court in the Halbig v. Sebelius case. In that case, a three-judge panel of the D.C. Circuit threw out the subsidies, saying the plain language of the statute prevailed. But Harry Reid threw out the filibuster rule in the Senate in order to pack that court, and the whole court voided that decision and agreed to hear the case en banc—i.e. with the whole court sitting. Whether the Supreme Court wants to get the issue settled, or whether it was annoyed at the D.C. Circuit Court for not following its own rules regarding en banc hearings we cannot know. The Supreme Court is just about the only institution in Washington that doesn’t leak like a sieve.

Should the high court go with the plaintiffs, it is hard to see how ObamaCare could survive. With no subsidies, many people could not afford the insurance and only the sickest would sign up. That would send premiums skyrocketing, sending the whole program into what the administration has dubbed a “death spiral.”

Since the court grants a writ of certiorari in only about one percent of the cases that appeal to the court, there is at least a substantial chance that the court will reverse the circuit court decision and thus effectively kill the Obama administration’s signature accomplishment. It doesn’t have a lot of other accomplishments to call its own.

President Obama is not having a good week.

Read Less

An Unbalanced View of the Zivotofsky Case

In today’s Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey – who served in the Justice Department and the White House Counsel’s office during the Reagan and George H. W. Bush administrations – propose a “balancing” test to resolve the Zivotofsky passport case. They acknowledge Congress can regulate passports and has given Jerusalem-born Americans the right, if they request it, to have “Israel” on their passports as their place of birth. They argue, however, that (1) the “harm” to Congress would be “small” if its statute were declared unconstitutional, while (2) presidential “recognition authority” would be “severely undercut” if the law were implemented. Both assertions are demonstrably wrong, as Monday’s oral argument made clear.

Read More

In today’s Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey – who served in the Justice Department and the White House Counsel’s office during the Reagan and George H. W. Bush administrations – propose a “balancing” test to resolve the Zivotofsky passport case. They acknowledge Congress can regulate passports and has given Jerusalem-born Americans the right, if they request it, to have “Israel” on their passports as their place of birth. They argue, however, that (1) the “harm” to Congress would be “small” if its statute were declared unconstitutional, while (2) presidential “recognition authority” would be “severely undercut” if the law were implemented. Both assertions are demonstrably wrong, as Monday’s oral argument made clear.

Chief Justice Roberts, in an exchange with Solicitor General Verrelli, demonstrated that there is no principled way of applying such a test, and that the “harm” would be either ceding unreviewable power to the president or requiring case-by-case litigation as the Court “balances” each case:

CHIEF JUSTICE ROBERTS: Let’s say … that passports are printed in Country A, not the United States, and there’s a printing plant there, and Congress passes a law saying, no, you must have the passports printed in Country B because we don’t think you should recognize Country A. Does that interfere with the President’s recognition power?

How do you “balance” that one? And who decides (“balances”) it – the President, the Congress, or the Court? Verrelli responded to Roberts that the hypothetical was a harder case than Zivotofsky’s, but Verrelli did not venture a judgment on it, nor declare which of the three branches of government should make the decision. The Roberts hypothetical shows that while a “balancing test” may sound reasonable, “balance” is in the eye of the beholder: one could just as easily argue that Congressional authority would be “severely undercut” if the president can ignore it whenever he thinks foreigners won’t like it.

Justice Alito’s questioning also demonstrated that the president’s power would not be “severely undercut” if the law were enforced, because the U.S. already effectively recognizes Israeli sovereignty over Jerusalem — for purposes directly bearing on Zivotofsky’s passport:

JUSTICE ALITO: May I ask you another factual question? When Menachem [Zivotofsky] was born, was he issued a birth certificate by the Israeli authorities?

MS. LEWIN: Yes.

JUSTICE ALITO: And the United States recognizes that as a lawful exercise of Israeli authority, to issue a birth certificate for a child born in Jerusalem?

MS. LEWIN: I believe they do, Your Honor.

JUSTICE ALITO: So this is a question I would ask the Solicitor General, but I don’t completely understand what the position of the United States is regarding Israeli sovereignty over Jerusalem. I understand it is the position of the United States that Israel does not exercise full sovereignty over Jerusalem, but that in this instance, the issuance of a birth certificate, I suspect the United States recognizes that Israel is lawfully exercising attributes of sovereignty over the territory of Jerusalem.

In other words, to qualify for a U.S. passport, one must prove one is a U.S. citizen; and the U.S. accepts the birth certificate issued by Israel for an American born in Israel’s capital. But it would supposedly “severely undercut” the president’s power if that individual has the right, at his request, to have “Israel” put on his own passport as his place of birth?

Later in the oral argument, Justice Alito directed his question to Solicitor General Verrilli:

JUSTICE ALITO: Can I ask you the question I asked Ms. Lewin. What exactly is the position of the executive regarding Israel’s exercise of sovereign powers in Jerusalem? Is it the case that it is the position of the executive that Israel cannot lawfully exercise any sovereign powers within Jerusalem?

GENERAL VERRILLI: The position of the executive is that we recognize, as a practical matter, the authority of Israel over West Jerusalem. With respect to the rest of Jerusalem, the issue is far more complicated. It might well be, as a practical matter … we would accept [the birth certificate] as evidence of birth …

JUSTICE ALITO: Well, it must have been accepted as evidence of birth or the passport would never have been issued.

Zivotofsky was born in Shaare Zekek Hospital in West Jerusalem. Thus as a “practical matter,” as even the Solicitor General conceded, he was born in Israel. Would it really “severely undercut” the president’s power if Zivotofsky’s passport, like his birth certificate, recognized that fact — while reserving presidential authority to declare it does not affect U.S. recognition policy, just as President Clinton did in connection with the passports of Taiwan-born Americans?

It is a strange “balancing test” that sees no harm in preventing Congress from exercising its admitted Constitutional authority, when – as Justice Kennedy’s questions skillfully showed – the president’s own authority is easily preserved. This case could have been resolved years ago by adhering to the Taiwan precedent, rather than litigating for a decade to preserve the pretense that the “peace process” depends on the place of birth in Zivotofsky’s passport.

Read Less

The GOP’s Gay Marriage Dilemma

The reaction to yesterday’s U.S. Supreme Court decision not to hear challenges to lower court rulings invalidating gay marriage bans in various states provided some insight on the cultural shift inside the Republican Party. While Senator Ted Cruz blasted the Supremes for allowing the courts to usurp the right to define marriage from the states, the silence from much of the GOP was deafening. While the issue may be important to anyone, like Cruz, who intends to run for the 2016 GOP presidential nomination, much of the rest of the party may be taking the hint from the courts.

Read More

The reaction to yesterday’s U.S. Supreme Court decision not to hear challenges to lower court rulings invalidating gay marriage bans in various states provided some insight on the cultural shift inside the Republican Party. While Senator Ted Cruz blasted the Supremes for allowing the courts to usurp the right to define marriage from the states, the silence from much of the GOP was deafening. While the issue may be important to anyone, like Cruz, who intends to run for the 2016 GOP presidential nomination, much of the rest of the party may be taking the hint from the courts.

Cruz’s willingness to jump out front on the issue is another indication that he intends to add social conservatives to a coalition that already includes Tea Party stalwarts as well as some who are enamored of his strong foreign-policy stands. But while he won’t be the only candidate seeking their votes, it’s not exactly surprising that he didn’t face much competition for airtime about the decision yesterday from leading Republicans. The position of anyone nominated by the party will be support for a definition of marriage as being between one man and one woman. But though support for measures limiting abortions or banning late-term procedures that are seen as akin to infanticide remains strong among most Republican constituencies, the general lack of outrage about gay marriage yesterday outside of social conservative circles can easily be interpreted as indicating that most in the GOP think this is not an issue on which they think most Americans are behind them.

In choosing to punt on the appeals of various lower court decisions invalidating state measures banning gay marriage, the Supreme Court seemed to be saying that they won’t take up this issue again until one of the appeals courts is ready to uphold such laws. But in ruling in favor of gay marriage as a right that states can’t invalidate, lower federal courts are following the high court’s lead. Last year the court both allowed a state court to strike down a California referendum and separately ruled against the federal Defense of Marriage Act’s provision that barred benefits for same sex couples. While the court could have taken up any one of the appeals from states yesterday and handed down a definitive ruling on the issue, it seems to prefer to let the process unfold on a lower level. As it often has during its history, the court is listening to public opinion and what it’s hearing is that most Americans are no longer opposed to gay marriage.

The cultural shift on this issue has been as swift as it has been decisive, but as much as social conservatives are right to complain about the courts usurping the right of the people or the legislatures to make up their own minds on marriage, the polls are following popular culture on this point. Admitting this does not mean social conservatives no longer have support on any of their key issues. Americans remain deeply divided on abortion. But gay marriage is no longer a point on which most are prepared to argue. Indeed, as acceptance of the change grows more widespread with it now available in 30 states, even some conservatives are starting to admit that gays marrying doesn’t really affect them or their families.

The question is whether the Republican Party is ready to follow suit. Senator Rand Paul may currently find himself out of touch with many in his party on foreign and defense policy as the isolationist moment in American politics may be over. But as Greg Sargent noted this weekend in the Washington Post, his less strident tone on marriage may actually be more in tune with popular sentiment among Republicans than many thought.

But the problem for Republicans is that while they will be debating gay marriage, the rest of the country is no longer much interested in the discussion. Indeed, Paul’s argument that perhaps just as Republicans don’t want the government involved in their lives in other respects they might now be better off saying that it should stay out of marriage too may be a lot more popular than his foreign-policy views these days.

Social conservatives and evangelicals remain a key GOP constituency, but even if most Republicans are sympathetic to their concerns, the idea of letting the party get stuck in an argument that no longer resonates for most of the country should alarm them. With the conservative majority on the Supreme Court and the party’s establishment waving the white flag on gay marriage, this is one issue on which social conservatives may have lost all of their key allies.

Read Less

Court Ensures ObamaCare Debate Is Just Getting Started

Even amid a spate of bad news about their Senate candidate’s chances in November, Democrats have been celebrating the way ObamaCare seems to have fallen off the country’s political radar recently. Though the president’s signature health-care law is still deeply unpopular, the issue has been largely eclipsed by general concerns about presidential leadership and scandals in the midterms. But the confidence on the part of the administration and its supporters that this issue was finally settled had to be shaken by a federal court decision yesterday that essentially eviscerated the ability of the law to function in most of the country. If it holds up on appeal, the ruling will not only largely undo the president’s legislative triumph but also set the stage for a new spirited debate on health care that Democrats were hoping to avoid.

Read More

Even amid a spate of bad news about their Senate candidate’s chances in November, Democrats have been celebrating the way ObamaCare seems to have fallen off the country’s political radar recently. Though the president’s signature health-care law is still deeply unpopular, the issue has been largely eclipsed by general concerns about presidential leadership and scandals in the midterms. But the confidence on the part of the administration and its supporters that this issue was finally settled had to be shaken by a federal court decision yesterday that essentially eviscerated the ability of the law to function in most of the country. If it holds up on appeal, the ruling will not only largely undo the president’s legislative triumph but also set the stage for a new spirited debate on health care that Democrats were hoping to avoid.

A federal judge in Oklahoma ruled yesterday in Oklahoma v. Burwell that the government could not extend subsidies to ObamaCare customers in the 36 states where no state exchange currently exists. Judge Ronald A. White rightly decided that the president’s policy of giving the subsidies in all states flatly contradicted the wording of the Affordable Care Act which states that the tax credits could only apply to insurance purchased “through an exchange established by the state.” The administration had claimed it was “standing in the shoes” of the states that refused to set up their own insurance marketplaces, but this was correctly dismissed as an abuse of power with no basis in law.

Who’s to blame here? Democrats will blame Republican judges, but they should be castigating themselves. This is, after all, the bill that then House Speaker Nancy Pelosi famously said had to be passed before it could be understood. But in their rush to force it down the throats of the country in 2010, they made a fatal drafting error.

While the attorney general of Oklahoma, which challenged the Department of Health and Human Services in this case, praised the decision as “a victory for the rule of law,” there is more at stake here than the question of whether the administration can change an existing law by presidential fiat. This is no technicality. If upheld (other federal courts have split on the question), the ruling will cut off federal subsidies for more than 4.5 million of those who have enrolled in ObamaCare essentially gutting the effectiveness of the law. It cannot function without the subsidies. Since complying with the ruling would require Congress to amend the ACA to cope with the fact that a majority of states wouldn’t set up exchanges, this could end its implementation for the foreseeable future.

This means ObamaCare is heading back to the U.S. Supreme Court where Chief Justice John Roberts’ illogical decision allowed it to survive a challenge to its constitutionality. Would Roberts somehow step in again to save ObamaCare? There’s no telling which way he would jump. But no matter what he does, the president’s supporters can’t feel comfortable once again placing the future of the law in Roberts’ hands.

Just as important, this will also mean that the debate over ObamaCare will be heating up again in 2015. The expected skyrocketing of insurance rates caused by the law as well as what may be a disastrous impact on the economy when the employer mandate is put into effect already made Democratic predictions of its acceptance look foolish. But with the fate of the entire project now up in the air, the debate (which Democrats predicted would already be over) about the merits of this still unpopular law will be heating up next year.

Far from being consigned to the dustbin of history as the president and his fans have often claimed, the ObamaCare debate not only isn’t dead, but the flawed nature of the legislation has ensured it will be bedeviling Democrats in 2015 as much if not more than before.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.

Read More

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.

Read Less

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.”

Read More

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.

Read Less




Pin It on Pinterest

Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.