We live in a golden age of Supreme Court coverage, and then there’s Linda Greenhouse [David Henderson on Michael Cannon]
P.S. Likewise on the Canning decision [Nicholas Quinn Rosenkranz]
Last week, when two federal circuit courts of appeals came out on the same day with conflicting opinions on whether to enforce the literal language of the Affordable Care Act bestowing tax credits only on users of state-established exchanges, some journalists (at, e.g., Vox) took the line that the omission in the statutory language had been a mere drafting error not reflecting anyone’s intent. In subsequent days it was revealed that ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges. Complicating further the question of intent, however, Daniel Fisher at Forbes writes of a Republican Senate staffer who did expect federal exchange enrollees to get tax credits.
Even if we accept the “drafting error” rather than the “pressure the states” explanation of the ACA’s language, it’s worth noting that after major legislation Congress ordinarily comes back to pass a fix-it bill to clean up drafting errors. [More: Tyler Cowen] That’s a lot less likely to happen when the landmark bill is forced through in half-finished form against a unanimous opposition party because going to conference committee would have required negotiating.
I well remember the pride displayed in some quarters about having forced a health care bill through against Republicans’ resistance, even though it was common knowledge that the bill’s details were not in anything like a finished state. I suppose the plan was to rely on a combination of creative executive interpretation and, where needed, judicial mulligans of the sort the Fourth Circuit just agreed to provide.
A panel of the D.C. Circuit ruled today that the IRS is not free to rewrite the ObamaCare statute to extend tax credits from users of state-run health exchanges, as per the law’s language, to users of the federal exchange as well, because the federal government is not a “State.” [Halbig v. Burwell; Ilya Shapiro, Cato] Later today, a panel of the Fourth Circuit ruled that yes, it’s free to do so. [King v. Burwell] Given the instant one-day circuit split and the importance of the issue, further court consideration is inevitable, and the Obama administration has already indicated that it will seek en banc consideration by the full D.C. Circuit, packed with its own recent appointees. More: The work of my Cato colleague Michael Cannon and Case Western lawprof Jonathan Adler helped undergird the suit; Cannon has commentary here and here and Adler here and here.
The Court has ruled that under RFRA, the Religious Freedom Restoration Act, Congress cannot require closely held corporations to provide contraception coverage as part of ObamaCare when there are readily available alternatives to serve the government’s objectives that would not tread on conscience rights. So said a five-Justice majority led by Justice Alito, including a whittle-it-down concurrence by Justice Kennedy emphasizing the narrowness of the ruling. Why narrow?
* “Closely held” is important — private corporations like Hobby Lobby and Conestoga are closer to surrogates for the owning family than are publicly traded corporations.
* The available alternatives are important — in many closely related situations it won’t be as easy to devise a workaround that serves the government’s policy objectives, and in those situations the claims of conscience may lose out.
* And the basis of the decision in RFRA, that is to say, statutory rather than constitutional law, is important. Congress is free to tinker with RFRA, Obamacare law, or both if public opinion is dissatisfied with the outcome. Although objectors may later raise First Amendment arguments, today’s decision in no way decides those issues.
Earlier coverage here. Cato’s brief is here, and Ilya Shapiro is out with a statement for Cato (“Obamacare’s contraceptive mandate had to [fail under RFRA] because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs.”)
P.S. My colleague Julian Sanchez argues that the outcry against Hobby Lobby had almost nothing to do with whether any actual female employees will gain or lose access to contraception, and was instead was almost entirely a matter of cultural signal-sending.
All sitting Presidents try to press the power of their office into doubtful areas. President Barack Obama has been particularly aggressive about doing so, according to the panelists at a May 21 discussion held at the Cato Institute. Georgetown law professor and Cato fellow Nicholas Quinn Rosenkranz noted that the Constitution’s Take Care Clause directs the President to take care that the laws are faithfully executed, and descends directly from centuries of struggle against the “dispensing power” claimed by pre-modern English kings — that is, the power to dispense with enacted legislation entirely where the royal will is better served that way, a claim of power that goes beyond simple prosecutorial discretion or the pardon power.
Rosenkranz pointed to a number of Obama executive actions that are hard to reconcile with the Take Care clause. The text of the Affordable Care Act, for example, states that the employer mandate prescribed by the law was to begin Jan. 1, 2014. “You don’t need a lawyer to interpret this, you need a calendar.” Yet President Obama elected unilaterally to delay the mandate and substitute a later effective date of his own choice. Likewise, the President’s suspension of some immigration regulations overrode the clear letter of U.S. law, aside from any pluses or minuses it may have had as a policy matter.
“President Obama is being the kind of President Nixon wanted to be,” said panelist Jonathan Turley, a well-known legal commentator and law professor at George Washington University: “Many Democrats will rue the day they stood by while the President asserted these kinds of powers.” Panelist Andrew Grossman of Cato said future presidents are likely to follow Obama’s lead and assert their own right to suspend the operation of other laws.
Bonus: At a separate event, Cato welcomed George Mason U. law professor Frank Buckley to talk about his book The Once and Future King: The Rise of Crown Government in America. I offer a question at the beginning of the comment period.
“Obamacare Call Center Faces Unpaid Wages & Overtime Class Action Lawsuit” [BigClassAction.com]
Ilya Shapiro sorts out the issues for SCOTUSblog. Earlier here.
The Cato Institute has submitted an amicus brief in the Hobby Lobby and Conestoga cases, which test the extent to which the Religious Freedom Restoration Act (RFRA) and the First Amendment restrain the federal government from requiring employers to participate in employee benefit arrangements that violate the conscience of the individuals who own and run the company. More on the other amicus briefs from Rick Garnett at PrawfsBlawg and commenters. Prof. Bainbridge takes issue with a brief signed by a group of law professors on whether a corporate enterprise can be treated as an alter ego for its owners for purposes of imputing to it their rights (“reverse veil piercing”), and has some further thoughts on the legal principle — sometimes ideologically contested, but seldom in a consistent way — of corporate personhood. Related earlier here.
Legislature’s back in session and no citizen’s liberties are safe:
- SB 65 (Benson) would require gas station dealers to maintain operational video cameras and retain footage for 45 days [Maryland Legislative Watch]
- HB 20 (GOP Del. Cluster) would require all public schools to hire cops [Gazette, MLW]
- SB 28 (Frosh) would lower burden of proof for final domestic protective orders from “clear and convincing” to “preponderance of the evidence” [MLW, ABA] One problem with that is that orders already tag family members as presumed abusers in the absence of real evidence, are routinely used as a “tactical leverage device” in divorces, and trip up unwary targets with serious criminal penalties for trying to do things like see their kids;
- Driving while suspected of gun ownership: what unarmed Florida motorist went through at hands of Maryland law enforcement [Tampa Bay Online] 2014 session in Annapolis can hardly be worse for gun rights than 2013, so it stands to reason it’ll be better [Hendershot's]
- State begins very aggressive experiment in hospital cost controls: “I am glad there is an experiment, but I’m also glad I live in Virginia.” [Tyler Cowen]
- Scenes from inside the failed Maryland Obamacare exchange [Baltimore Sun] Lt. Gov.: now’s not the time to audit or investigate the failed launch because that’d just distract us from it [WBAL]
- Corridors run pink as Montgomery County school cafeterias battle scourge of strawberry milk [Brian Griffiths, Baltimore Sun]
- Plus: A left-right alliance on surveillance and privacy in the legislature [my new Cato at Liberty post]
- How did Maryland same-sex marriage advocates win last year against seemingly long odds? [Stephen Richer, Purple Elephant Republicans citing Carrie Evans, Cardozo JLG; thanks to @ToddEberly as well as Carrie and Stephen for kind words]