Obamacare as settled law, or not

This whole government shutdown and funding stalemate is sheer politics and lack of reason.

As noted here before, the House of Representatives’ effort to settle on a funding agreement that adds conscience protection to the ‘Affordable Care Act’ actually funds necessary government services, tried to avoid the now days old shutdown and asks for a delay in the implementation of Obamacare as the president has already granted, by executive order, to selective institutions, bodies and organizations.

Thomas Sowell points this out in National Review Online.

There is really nothing complicated about the facts. The Republican-controlled House of Representatives voted all the money required to keep all government activities going — except for Obamacare.

But on the idea that Obamacare is “settled law”, there’s considerable dispute. This WaPo opinion piece explains:

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way.

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just. But a more practical rule of thumb is that both political parties must agree on its legitimacy. Roe remains unsettled after 40 years primarily because Republicans refuse to accept it…

The Affordable Care Act is not settled law because the public remains deeply divided over it: More than half of Americans are opposed. But even more critically, congressional Republicans have withheld their stamp of approval. Many Republican lawmakers refuse even to call it a law; they keep referring to it as a “bill.”

Republicans offer several explanations for their rejection of the act’s validity. Most often, they note that the law was passed entirely with Democratic votes. This is in contrast to other major legislation, including the Civil Rights Act of 1964, which was enacted with overwhelming bipartisan support and thus became settled much more quickly.

Republicans also cite the unusual procedures used to pass the health-care act — most notably, the budget reconciliation process that avoided a filibuster while moving the final legislation through the Senate. This tactic left many Senate Republicans feeling cheated.

Republican suspicions about the legitimacy of the act were exacerbated by a report that Chief Justice John Roberts switched his position on the constitutionality of the individual mandate — the provision at the heart of Obamacare — late in the Supreme Court’s deliberations. According to unnamed sources who spoke to CBS News, Roberts initially sided with the conservative justices and started to draft an opinion striking down the mandate, but at some point he became “wobbly” and decided to join the liberal justices and uphold the bulk of the law.

Ethics and Public Policy Center scholar George Weigel offered his opinion on why Roberts’ did that. It’s provocative. Take this snip of it posted by one of his colleagues:

The deepest of the “deeper truths” that one might find in Chief Justice Roberts’s opinion is that America’s success in forming a more perfect union, providing for the general welfare, and ensuring the blessings of liberty to our posterity ultimately rests on the strength of American political culture. And here, the sensus plenior of the Roberts opinion intersects with the social doctrine of Pope John Paul II, especially in the 1991 encyclical Centesimus Annus. Democracy, the Polish pontiff taught, is not a machine that can run by itself. It requires a critical mass of…men and women who have internalized the habits of mind and heart that make responsible self-governance possible…to make democracy work. Beneath the functions of democratic government lies the character of a people. And if the machinery has become dysfunctional, then it is time for the people to examine their conscience about the ways in which they are living their freedom: nobly or basely, selfishly or philanthropically, responsibly or dependently?

This was written before the last election, by the way.

And to note, a sensus plenior (the key to trying to understand Roberts’ decision) is “a fuller or deeper meaning, than can be apparent at first glance,” as Weigel explains in the original piece.

The chief justice thereby suggests that if “we, the people of the United States,” do not like the way the Congress taxes and spends, it is not only our prerogative but our responsibility to do something about it by electing new representatives who will tax and spend differently…

The second of the deeper truths implied by the Roberts opinion is that the Congress as presently constituted and currently functioning has too often been derelict in its constitutional duties. Thus at several points in his opinion, Chief Justice Roberts suggests, in some instances sharply, that the Congress should get serious.

No sign of that at the moment. But they’re facing the debt ceiling deadline next week, and anything could happen by then. Except, it appears, any fundamental agreement.

The mid-term elections are just over a year away. But you can still contact your congressional representatives, in the House and the Senate, whether anyone answers the phones or not. Emails, letters, visits to district offices, notes slipped under their doors if necessary, all convey the spirit of the electorate. We’re proving the adage…we get the government we deserve.

Religious freedom and the Obamacare “Tax”

What impact will Chief Justice John Roberts’ decision to uphold the individual mandate as a tax have on the battle for the right to religious liberty and conscientious objection?

This piece in Public Discourse is one of the best, most thoroughly covered and fairly stated commentaries I’ve seen. It takes a little more time to get through than many articles that are short, hastily written and aimed at sound bite mentalities for people who scan quickly. There’s a lot to scan out there, but this one deserves attention.

Unfortunately for religious organizations, the tax characterization weakens their legal position and appears to arm Secretary Sebelius with a potent arrow in her quiver. The Secretary of Health and Human Services can safely claim that religious organizations are seeking an exemption from a tax, and when it comes to taxation, the Supreme Court is exceptionally reluctant to grant religious exemptions. Yet in spite of this gift to the Obama administration, there are reasons to remain sanguine that the Supreme Court will find the administration’s refusal to grant a meaningful accommodation to religious organizations to be unlawful.

Okay, let’s break this down.

First, the bad news for religious organizations: the Supreme Court has traditionally been hostile to tax exemption claims on religious grounds, even when these taxes substantially burden religion.

Read the longer explanation of that, which follows.

Yet defenders of religious liberty should take heart, for there is also good news. There are several reasonable grounds upon which the Court’s line of reasoning in the “religious liberty versus tax” cases can be distinguished. Among these is that the assessment upon those who do not secure health insurance is no ordinary tax. Unlike the Social Security tax, which is imposed uniformly upon all, the “Obamacare tax” is imposed in a highly selective fashion. Only those who refuse to purchase health insurance, with coverage for all the religiously objectionable services mandated by the Department of Health and Human Services, will find themselves paying this tax. The selective nature of the tax raises the question of whether it is truly neutral and generally applicable in its purpose or effects. While it is generally uncharitable to speculate on questions of intention, the effects of this tax are neither generally applicable nor neutral. Those who will end up paying the tax will be those who refuse to purchase the insurance for reasons of religion and conscience, as well as those who believe they will save money overall by simply forking over money to the Internal Revenue Service…

Moreover, most religious organizations do not have a religious objection to a tax that supports health services. Many have a tradition of deference to secular authority, especially in the realm of taxation, firmly committed to “Render unto Caesar.” Religious hospitals, universities, and other charitable organizations object to being forced to pay for a narrow set of services that they do not regard as legitimately part of “health” care, or else pay a “tax” that is essentially a fine.

Here’s an important distinction:

The modest nature of the exemption sought in no way threatens the overall integrity of a law that is intended to increase access to medical services. There is no conflict between the federal government and religious organizations over the end of increasing access to healthcare. The major disagreement is over the means, and even then, only as these relate to a very small subset of “health” services.

Given the modest exemption sought, one might reasonably ask why there is such reluctance—indeed, intransigence—on the part of the Obama administration to negotiate in good faith with religious organizations to find a workable compromise. No one doubts that it is within the power of the administration to do this even while they uphold the overall integrity of the Patient Protection and Affordable Care Act.

Now comes a key point, not often covered or even understood. When I raise it with top legal experts on radio, they invariably jump on the chance to clarify what is fundamentally at issue in the lawsuits against the HHS mandate.

[T]he Religious Freedom Restoration Act (1993), which is as much congressional law as the Patient Protection and Affordable Care Act, requires that the executive branch of the federal government accommodate religious minorities when a law substantially burdens their religious practice, unless the government’s interests are compelling and the least restrictive means have been imposed to further that compelling interest. Religious organizations do not believe that the provision of contraception, sterilization, and abortion-inducing drugs is a compelling interest because they do not believe that contraceptive and abortion services are part of fostering “health.”

However the Supreme Court may regard this claim, it cannot ignore that the means used by the Obama administration—refusing an exemption to religious charitable services when it has granted this exemption to churches—is not the least restrictive means. Even assuming for the sake of argument that the provision of contraception and abortion services is truly necessary to advance “health,” it is still not necessary that religious charitable organizations must pay for them for this interest to be advanced. It is sufficient that those who want these services be given access to affordable contraception or abortion services, and there are myriad ways in which the federal government can (and does) make these services affordable and accessible to those who want them, without requiring religious charitable services to pay for them.

Stay with this, one more chunk. Connect the dots.

It is also arguable that the Obama administration is acting in a rogue fashion, paying little deference to the will of Congress. Congress has the power to tax; the Obama administration does not. Congress has empowered the Secretary of Health and Human Services to define “essential health benefits,” taking into account guidelines stipulated by Congress. For all practical purposes, it is a power given to President Obama since he can dismiss Secretary Sebelius or any other member of his cabinet at will if his bidding is not done. Secretary Sebelius has exercised this power to mandate controversial “preventive services.” Yet the power to define essential benefits does not inherently include the power to tax, or to determine upon whom a “penalty” or “assessable payment” will fall. There is little indication that Congress intended to delegate this power to Secretary Sebelius, and the delegation of taxing authority to this office would be most irregular. As compared to the Internal Revenue Service, which is closely monitored by and answerable to Congress, the Secretary of Health and Human Services is not nearly so accountable. Serving at the pleasure of the president, the secretary primarily does the president’s bidding. Absent a clear indication by Congress that it intends to tax non-compliant religious minorities, taxes resulting from a failure to provide essential benefits may be illegal, since the Secretary’s delegated powers do not necessarily include the ability to designate who will pay taxes.

Ultimately, note this:

The tenets of faith are not forced upon anyone; they are accepted as matters of conscience or not at all. The same cannot be said of the federal government’s penalties and assessable payments. Contraception and abortion are established constitutional rights, accessible to all, in spite of citizens’ objections to these. To have religious citizens pay directly for services contrary to their faith or else be penalized through selective taxation is the mirror image of levying taxes upon nonbelievers in support of churches. Both are violations of the establishment clause, for they involve the state treading into matters of faith by coercing compliance. Taxing some sects to subsidize directly the beliefs and practices of other sects, including the beliefs and practices of secular humanists, is exactly what the establishment clause was intended to prevent. As we keep faith with God, there are good reasons for Americans to have faith that our political system will prevent selective taxation, and that it will not burden our charitable religious organizations in matters of faith and conscience to benefit others.

To repeat, “there are good reasons for Americans to have faith,” which my sources at the Becket Fund for Religious Liberty soundly claim, time and again.