Mar 28

In a discussion about Tuesday’s oral arguments on two cases challenging the government’s coercive mandate, one legal counsel said “it was really oral arguments“.

The courtroom was lively and the justices engaged. A couple of pieces that pinpoint key moments to light.

Kathryn Lopez aptly refers back to the ‘parade of horribles‘ to describe the women justices’ engagement of the ‘what ifs’ involved in this case. Government attorneys tried to use it in their arguments.

One of the expected themes — because it was in the Department of Justice’s brief — during the Hobby Lobby/Conestoga Wood case before the Supreme Court yesterday was the idea of a parade of horribles that would come should the companies win their religious-liberty claim. Ed Whelan has written about this here…in response to the brief. The way the argument goes is that if you let employers opt out of abortion-pill and contraception coverage next employers are going to claim religious objections to sexual-harassment laws, minimum-wage laws, Social Security taxes, and vaccine coverage.

As Ed points out:

“The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.”

The “burden” test is essential to these cases and the whole HHS birth control delivery scheme. The Religious Freedom Restoration Act (known by shorthand as RFRA) which passed with full bipartisan support under the Clinton administration, holds a two-pronged test, that government cannot restrict religious freedom unless it produces convincing evidence of a compelling reason to do so,  and it is pursuing that action by the least restrictive means possible.

The government cannot pass that test on either count on the HHS birth control delivery mandate. Their attorneys have failed to produce anything approaching convincing evidence that they can pass that test, time and again, in the many lawsuits across the country over the past two years.

But here’s the real money moments in the dramatic exchanges in the high court Tuesday. Justice Anthony Kennedy was grilling the government’s attorney on whether allowing this mandate to go forward could extend government powers to authorize the compulsion to pay for abortions on a broader scale, since government attorneys had at that point conceded that IUDs can be abortifacents, and IUDs were part of the mandated coverage. The US Solicitor General (Don Verrilli) objected, saying current law “is to the contrary.”

But Kennedy persisted, saying the government was making a legal case that would permit that.

Verrilli continued to resist Kennedy’s simple hypothetical question, treating it as though he could not answer it unless there were really such a law on the books…

And then the chief justice intervened:

Chief Justice Roberts: I’m sorry, I lost track of that. There is no law on the books that does what?

Verrilli: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

Roberts: Well, flesh it out a little more. What—there is no law on the books that does what?

Verrilli: That requires for-profit corporations to provide abortions.

Pay attention to this line of questioning.

Justice Kennedy began to speak at this point, and Chief Justice Roberts cut him off by pursuing Verrilli like a hound who has treed a raccoon:

Roberts: Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.

What Kennedy treated as hypothetical, in other words, Roberts pointed out is not hypothetical at all. It’s actual. It is this case. Hobby Lobby is an abortion case (emphasis added), and at this moment in the argument, Roberts may just have sewn up Kennedy’s vote. Not because Kennedy is morally perturbed by abortion itself; I doubt he is, much. But because he is probably very concerned, and rightly, with a regulatory mandate that forces people to violate their religious beliefs about the sanctity of life by providing and paying for abortions. Roberts spoke circumspectly about the employers’ “religious beliefs” about the drugs and devices that cause abortion, and it was right for him in this context not to say more. But they do cause abortion, and so this is, in a way that should be very important to Justice Kennedy, an abortion case.

Conclusion at this point:

Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case.

The Supreme Court will rule in June.

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Mar 24

Or put bluntly, the government mandate to violate your conscience.

It’s as simple as that. No matter how much spin has been spun, and there has been much, it comes down to this.

Do Americans enjoy religious-liberty protections when they are at church, or do Americans enjoy religious-liberty protections when they are Americans?

That’s it. The Supreme Court hears oral arguments this week on that question.

Hobby Lobby is owned by a trust controlled by the Green family, observant Christians who make a point of carrying their faith into the marketplace, stocking Christian products and closing their stores on Sundays. They refuse to comply with parts of the Affordable Care Act’s contraception mandate, specifically the provision of products that they regard as actual or potential abortifacients, including intrauterine devices and the so-called morning-after pill, both of which can function to prevent an embryo from implanting in the uterus and thus surviving. Whether these products are properly regarded as abortifacients is a matter of some controversy, but the relevant question is not a technical one about the mechanisms by which these drugs and devices prevent pregnancy. Federal law protects religious liberty with no proviso that matters of conscience must be argued to the satisfaction of the American College of Obstetricians and Gynecologists before legal protections kick in.

Now here’s the money paragraph, the important explanation of the whole thing that helps understand what’s at stake in the claims to protection against government encroachment of religious freedom and conscience rights. Those claims are grounded in the Constitution and RFRA, the Religious Freedom Restoration Act.

While the issue is at heart a constitutional one, Hobby Lobby is not in this instance appealing to the First Amendment but rather to the Religious Freedom Restoration Act, which was passed by a unanimous House, a near-unanimous Senate, signed into law by President Bill Clinton, and certified as constitutional as applied to the federal government in a 2006 Supreme Court decision. The act sets a high standard that the federal government must meet when it burdens the free exercise of religion and was enacted in response to court decisions that had narrowed First Amendment protections. It is intended to reinstate the “Sherbert test,” which holds that in a case in which the involved parties hold a sincere religious belief and the federal government places a substantial burden on the exercise of that belief, then the federal government must both prove a “compelling state interest” in burdening religious exercise and — perhaps most important in this case — demonstrate that it has sought to secure that compelling interest in the least restrictive fashion.

That’s a two-pronged test the government cannot possibly pass in imposing the HHS mandate.

While it is hardly obvious that there is a compelling state interest in subsidizing access to contraception, which is widely available and inexpensive (a woman who required an emergency dose of Plan B once a quarter would still spend more annually on toothpaste), it is entirely implausible that the least restrictive way of achieving that subsidy is a nationwide legal mandate for coverage of those products at no out-of-pocket expense by every employer in the country offering health insurance — and the federal government will penalize them if they don’t offer it.

So…

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

So here we go.

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

This is about that, and more.

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences…

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences.

In a free, representative republic, it’s hard to imagine why or how government acts would possibly force citizens to violate their consciences. Surely, that cannot stand.

The reason that government is likely to lose in the Hobby Lobby case, however, is that there are so many ways for the government to distribute these drugs—on its own exchanges, through the Title X family-planning program and by cooperating with willing distributors—that do not require the forced participation of conscientious objectors. That presumably is why an effort is now being made to cut back on the robust conception of religious freedom that once united Americans of all faiths and even unbelievers.

The Establishment Clause argument should also fail. That provision exists to prevent the establishment of a national religion or the granting of superior standing to a religion that happens to have the support of most citizens. It would be perverse for a court to use it to punish the laudable practice—dating all the way back to George Washington’s decision to excuse Quakers from his army—of accommodating the free exercise of religion by protecting people whose religious beliefs or practices are not shared by the majority from being compelled even in the absence of a compelling reason to violate their consciences.

The two-pronged test of proving a compelling government interest in pursuing an edict that requires citizens to violate their religious beliefs, and then proving that the means of doing so constitute the least restrictive means possible to do so, is a test the government cannot pass with the HHS mandate, without the help of an activist court.

Oral arguments begin. The court ruling will come later. Stay tuned.

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Mar 03

With over ninety lawsuits in courts for over two years contesting the government’s violation of the Constitution and the Religious Freedom Restoration Act, this one may be emblematic.

The Little Sisters of the Poor, and order of nuns founded in the 1800′s to care for the elderly sick and the poor, have to go to court again to fight for the right to continue to do so. As Congressman Jeff Fortenberry told me on radio Monday, “they were already providing affordable care!” And doing so long before the president’s law by that name required compliance in providing drugs and services that violate consciences.

Understand the basics here, because the Little Sisters’ case starkly reveals them.

Under RFRA [the Religious Freedom Restoration Act], the government must establish it has a compelling interest to infringe upon the religious liberty of its citizens. The HHS mandate asserts that the government has a compelling interest to require that all employers provide health insurance that covers contraception, sterilization, and abortion-inducing drugs. The government claims such coverage is on par with preventive medical practices such as immunizations and cancer screening.

From a medical perspective this is ludicrous. Preventive medicine prevents disease and maintains health. Pregnancy is not a disease and fertility is not a disorder.

Full stop here. Because enough said. The Little Sisters – and all the other groups pursuing lawsuits to defend their right to continue doing their work and providing the healthcare coverage they were providing and applying their principles and moral beliefs to their work and services – are not trying to change what has already been easy access to birth control and morning-after pills. They’re trying to preserve their rights as they stood before the HHS mandate came out of nowhere and required coercion in a birth control delivery scheme that made these drugs part of the federal healthcare plan, masquerading as ‘women’s preventive health’.

And though this is an ‘aside’ to the main argument of government coercion to violate consciences, the HHS slipping in these drugs under that umbrella term bears scrutiny. So consider this aside:

Rather than maintaining health, contraception takes a perfectly healthy reproductive system and renders it non-functional. The methods used to achieve this state of sterility are fraught with health risks. The government’s own information page on contraceptives indicates they are associated with substantial risks including blood clots, breast cancer, cervical cancer, and liver cancer. Recent studies have demonstrated the use of hormonal contraceptives double the risk of transmission of the AIDS-inducing HIV. Women who use hormonal contraceptives increase their risk of the most aggressive form of breast cancer by at least 100 percent. The increase in breast cancer risk is greater the younger women are when they begin using hormonal contraceptives.

Some women choose to accept these risks and utilize hormonal contraception in order to be sexually active and avoid pregnancy. This is an elective lifestyle choice and not a necessary medical intervention. The government should have no more interest in whether or not women are accessing contraception to avoid pregnancy than whether or not women are using Lasik to improve their vision or using Botox to get rid of their wrinkles.

So, getting back to the two-prong test of RFRA, the first one was just addressed, that the government does not have a compelling interest to infringe on the religious liberty of its citizens.

However…

Even if we were to allow that there is some government interest in ensuring all women have access to highly risky elective medical procedures, the HHS mandate fails to meet the second demand of RFRA that the government utilize the least restrictive means to satisfy its compelling interest. Since 1970, the federal government has funded contraception through a program known as Title X. When the HHS mandate was first introduced, supporters were quick to claim that virtually every American woman utilized contraception and supported their assertions with data from the Guttmacher Institute. There were many problems with their analysis of the Guttmacher Institute statistics, especially when it concerned the number of Catholic women utilizing contraceptives, but the information did indicate that access to contraception is not a problem for American women. Title X funding of women’s health clinics is working as intended. Therefore, the push to force all insurance policies to include coverage for contraception is addressing an access problem that does not exist. The least restrictive course of action would be to continue the current Title X funding mechanism and avoid infringement upon anyone’s religious liberty.

On March 25, the U.S. Supreme Court will begin hearing oral arguments in two key cases challenging the constitutionality of the government’s HHS mandate.

In the meantime, all sorts of injunctions have been granted to employers and organizations to stave off the harsh impact of this mandate until it’s settled by the high court. That includes the New Year’s Eve injunction granted the Little Sisters by Supreme Court Justice Sonia Sotomayor. Followed by the full Supreme Court ruling continuing that relief until the 10th Circuit took up the case again.

Now the Little Sisters have gone back before the 10th Circuit Court of Appeals, seeking justice.

“We are thrilled the Supreme Court temporarily protected the Little Sisters from having to violate their conscience or pay crippling IRS fines. We are hopeful the Tenth Circuit will give them more lasting protection,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for Little Sisters of the Poor. “The federal government is a massive entity that has lots of ways to deliver contraceptives to people–it doesn’t need to force the Little Sisters to participate.”

The injunction from the Supreme Court provided the Little Sisters short-term protection from being forced to sign and deliver the controversial government forms authorizing, ordering, and incentivizing their health benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions. Instead, the Little Sisters simply had to inform HHS of their religious identity and objections.

In a USA Today column in the midst of this ongoing struggle, Kirsten Powers – who believes in government mandated birth control delivery on the face of it – called on the administration to give the Little Sisters of the Poor a break.

This is a very strange case. The government has argued that signing the form is meaningless because the nuns’ insurer, the Christian Brothers Employee Benefits Trust, is exempt from the mandate. Yet it has fought the Sisters all the way to the Supreme Court to make them sign it. What’s going on?

The government’s brief to the Colorado court provides a clue. It drips with contempt. The Obama administration finds the nuns’ complaint “implausible” and alleges that the Sisters are “fighting an invisible dragon.” Oh, you silly, simple-minded nuns! Just stop imagining things and do what the government tells you.

The Sisters reject the government’s contention that the form does nothing, as did all six lower courts to consider the claim in other church plan cases. They are wise to be leery of Uncle Sam’s intentions.

The dismissive tone of the administration’s brief is consistent with its overall attitude toward religious liberty issues throughout the implementation of the contraception mandate. Health and Human Services Secretary Kathleen Sebelius never bothered to consult the Justice Department to determine whether the mandate was consistent with the Constitution and the Religious Freedom Restoration Act, despite requests from Congress.

When asked whether she consulted the U.S. Conference of Catholic Bishops over their complaints about an effort to find an “accommodation,” Sebelius said she didn’t. Considering it was the primary group complaining, why not?

These are questions I’ve been asking for the past two years, and few in big media have bothered to. I’m glad Powers asked.

The administration’s indifference to religious liberty complaints is not limited to issues arising from Obamacare. In 2011, the government made the argument in Hosanna-Tabor v. the Equal Employment Opportunity Commission that churches do not have special rights under the First Amendment but merely association rights, like unions. Justice Antonin Scalia called this “extraordinary,” and Justice Elena Kagan said it was an “amazing” claim. Another word that comes to mind is “disturbing.” A unanimous court rejected the administration’s claim.

However, nine days after that unanimous Supreme Court ruling rejected the administration’s claim to the right to infringe on religious freedom in Hosanna-Tabor, the HHS mandate was issued. This is, in a word, relentless.

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Jun 28

Nearly all the experts predicted it would wind up a 5-4 decision and that Anthony Kennedy would be the swing vote. They got it half right.

Nobody saw this coming.

Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday to uphold the linchpin of President Barack Obama’s plan to expand health coverage to nearly all Americans, a surprise conclusion to a constitutional showdown.

The ruling clears the way for the biggest revamp of America’s health-care system since the 1960s—and sets the stage for a renewed political fight over its merits.

By a 5-4 vote, the court held the law’s mandate requiring Americans to carry health insurance or pay a penalty valid under Congress’s constitutional authority to levy taxes.

They were allegedly going to rule on whether it could be upheld under the Commerce Clause, and they did. The majority said it couldn’t. But Justice Roberts swung in another direction.

Chief Justice Roberts went on to say that the penalty for failing to carry insurance met the criteria for a tax.

Not even the White House prepared for that.

In fact, the high Court decision upholding the mandate as a taxing provision counters how President Obama has described the mandate in the past. The fact is that President Obama refused to frame the health care mandate as a tax during an interview with ABC News in 2009. The President flatly rejected the assertion that the penalty for not purchasing health care insurance should be characterized as a tax. “I absolutely reject that notion,” the President said.

So that’s likely going to be an issue in this presidential election year. A big one, given the size of this tax increase, coming from a president who has relentlessly insisted he would never raise taxes on the middle class. There’s no denying it’s a tax now.

And it may recharge the Tea Party coalition that helped Republicans take control of the House of Representatives in November 2010 on the staunch promise of not raising taxes and not compromising with anyone who proposed to for any reason. Maybe they’ll coalesce around Mitt Romney now that his election is the only way to stop the Obamacare juggernaut that will de facto tax Americans to pay for it. Who knows, this is day one and things have just changed. Dramatically.

Not only did no one see this coming, the White House, Democrats in and seeking office and the liberal media have been trying different strategies in the days and weeks leading up to the Supreme Court ruling to deflect what seemed like an inevitable setback for Obama. The New York Times ran a front page story, above the fold, on the justices dropping in public opinion polls lately, which seemed odd given that they’re the one body that doesn’t answer to the public.

Then that strategy turned to the more recent one of discounting the outcome before it happened, with news stories claiming Obamacare would still be significant reform no matter what the justices decided.

Then there was this, which was interesting. Especially read a day later.

It also was not the result some liberals and Democrats expected before the decision was unveiled this morning.

Little more than 12 hours earlier, the Senate candidate for whom Obama campaigned in Boston on Monday – fellow Democrat Elizabeth Warren – was on MSNBC saying the ruling would be a telling gauge for assessing the politicization of the Supreme Court.

“We need to use this moment to reflect on the importance of the Supreme Court and who sits on the Supreme Court,” Warren told liberal talk show host Rachel Maddow…

“The Supreme Court is wading into really deep waters, and is doing it in ways that, I think, worry us all, and I think it’s a reminder that who sits in the United States Senate, to review those nominations, to vote on those nominations, really does matter,” said Warren.

For emphasis, she added: “It will be about the Affordable Care Act tomorrow, but it will also be about the Supreme Court tomorrow.”

Yes, it sure was. About both. What are they saying now about the Supreme Court? About judicial activism, and the vetting of nominations? About the Affordable Care Act being a huge tax on Americans after all?

Stay tuned. There will be plenty. For starters, the focus moves to the Senate, where Harry Reid is asking everyone to move on now to something else.

And meanwhile, the HHS lawsuits move forward. While the Supreme Court ruling didn’t affect those suits, some justices gave dropped some loaded cues into their opinions that the tax for this healthcare still has to respect constitutional requirements, like “the free exercise of religion” to name one. More lawsuits sure to follow.

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Apr 06

The question is not whether President Obama keeps making gaffes and mis-steps lately in public policy or public statements. My question, instead, is…are they calculated and to what end?

This blogger wondered the same thing, particularly about the so-called ‘accommodation’ allegedly adjusting the HHS mandate to suit religious liberty claims.

Has this been Obama’s goal all along – to set such an extreme, unconstitutional standard to begin with that he is now able to set a still unconstitutional standard while the public believes he’s being reasonable?

He’s mis-stepping alright, but more voices are saying his steps are intentional and defiant. Like these Bloomberg News writers.

President Barack Obama has shown a willingness to campaign against the U.S. Supreme Court if the justices strike down his 2010 health-care law. It’s a strategy that’s as risky as it is rare.

With the court months away from a ruling, Obama ratcheted up the political stakes this week by saying a decision to reject the law and its requirement that Americans get insurance would be “judicial activism” by “an unelected group of people.”

Taking on the court would mean fighting an institution that polls show is historically the most admired branch of government.

He’s already made it a campaign strategy to run against Congress, alienating or at least irritating the Democratic leadership in the Senate and all members of Congress in the president’s party. Now, he seems to be running against the Court, making weirdly bad statements about the separation of powers and law precedent, for someone who lectured at the University of Chicago on constitutional law. Washington Times editors give him an F here.

For someone who once taught classes at a law school, President Obama doesn’t seem to know much about the powers of the Supreme Court.

At a press conference Monday, Mr. Obama said he did not think the high court would rule that forcing Americans to buy health insurance was unconstitutional. “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said.

There’s plenty of precedent for voiding a law like Obamacare. The top justices have invalidated more than 150 federal laws in part or in whole. Nor would there be anything extraordinary about such a step, as courts frequently make these types of rulings. In fact, it would be unprecedented and extraordinary for it to let stand the unconstitutional aspects of Obamacare.

There’s also no truth to the suggestion that Obamacare passed by a “strong majority.” The vote was 219 to 212, a razor-thin margin in which 34 members of the president’s own party voted no. The margin of passage has never been a factor in the Supreme Court’s review of any law. That’s simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate.

True, all true. But was it a blunder, or a strategy? That’s what provoked an appeals court judge to issue a testy demand the media called ‘a homework assignment’ to explain the president’s understanding of the courts, the law, judicial review and the separation of powers.

This blogger says it was a counter move that checked the president, who gets low marks on constitutional law.

What if the Supreme Court did not have the power to review laws or executive decisions, to overturn those that are “unconstitutional” – how different might life be in the United States? Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have that power, despite the fact that judicial review had its origins in early seventeen-century England and had been asserted by James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of the most important Supreme Court decisions in American history, Marbury v. Madison, laying the foundation for the Court’s ability to render its decisions about laws and actions. In Marbury v. Madison, the Supreme Court claimed the power to review acts of Congress and the president and deem them unconstitutional, creating a precedent for an American process of judicial review. Through the decision of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a vital role in American life.

And the president back-pedaled while DOJ complied with the appeals court judge’s demand for an explanation.

Attorney General Eric Holder made clear Thursday that the Obama administration recognizes the authority of federal courts, including the Supreme Court, to rule on whether the 2010 health care reform law or any other laws passed by Congress are constitutional.

So what did we learn and what did the president accomplish? Well, Americans now know more about Marbury vs. Madison than ever before, safe to say.

And a former Obama student, who later clerked for the particular appeals court judge who challenged the president’s remarks about judicial review, has spoken out about all the media chatter.

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun.  Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise.  Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5.  You’d be a little embarrassed, right?  You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
 
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.”  Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.

Now this is interesting…

(Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.)

Exactly. The student has become the instructor (as has the appeals court judge), and this whole exercise has resulted in the transparency Obama promised in his presidential campaign, in spite of his ongoing efforts to avoid it.

Ironically, just three days before the January 20 HHS mandate was announced, Bill McGurn wrote this WSJ column on the administration’s overreach causing Americans to take a renewed interest in the Constitution. Its scrutiny has only increased since then.

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Apr 02

The individual mandate requring citizens to purchase something was challenged from the beginning in state and appellate courts, and opening argument were just heard before the US Supreme Court. The HHS mandate requiring citizens to purchase something that violates their conscience is being challenged in a first round of lawsuits with more joining by the week.

One of the new games in town during last week’s Supreme Court hearing of arguments on Obamacare has been handicapping the justices likely ruling on this case, when one comes.

But ‘the best defense is a good offense’ strategy returns as the president takes a shot at the Supreme Court, actually using the term “judicial activism” as a warning.

And President Obama is pressing the ‘activist court’ charge.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said at a Rose Garden news conference.

The majority he referenced was not quite that strong; Congress approved the law two years ago in hard-fought party-line votes after a divisive national debate. Republican presidential contenders say they will make sure it is repealed if the Supreme Court doesn’t throw it out first.

For a president to weigh in so forcefully about a case currently under deliberation by the Supreme Court is unusual, and it speaks to the stakes at hand.

He did, after all, write the book about audacity.

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Jan 11

The Supreme Court of the United States has been asked to hear some unusually pivotal cases in recent time, even for that increasingly political body.

In this one, theology was up for debate, as WaPo put it.

From homeland security to healthcare, the federal government now has the power to reach further than ever into American society. But so far, the feds have sensibly stayed out of the business of appointing religious leaders.

Now, in a stunning about-face, the Obama Administration has urged the Supreme Court to allow courts to decide virtually any dispute between a church and its ministers. In the administration’s view, juries and judges, not congregations and bishops, should have the final say on who is fit for religious ministry. Fundamental questions of theology would be resolved in the same way as slip-and-fall cases. Plaintiffs’ lawyers would go into a religious feeding frenzy.

The DOJ made this astounding declaration in its brief for a Supreme Court case called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which some observers have called the most important religious freedom case in 20 years.

The ruling came today.

The Supreme Court of the United States has ruled unanimously in favor of a church’s right to be itself, and its freedom to assign its ministries:

This is an enormous and timely victory for religious freedom:

“In a groundbreaking case, the Supreme Court on Wednesday held for the first time that religious employees of a church cannot sue for employment discrimination.

“But the court’s unanimous decision in a case from Michigan did not specify the distinction between a secular employee, who can take advantage of the government’s protection from discrimination and retaliation, and a religious employee, who can’t.

“It was, nevertheless, the first time the high court has acknowledged the existence of a “ministerial exception” to anti-discrimination laws — a doctrine developed in lower court rulings. This doctrine says the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of such protective laws when the issue involves employees of these institutions.

Read the whole post and its links, Anchoress put it all together well. Picture Justices Scalia and Kagan jointly outraged “at the government’s constitution-shredding argument.”

Chief Justice John Roberts noted in the court’s opinion

this was the first time the high court has ever considered the “ministerial exception,”

…but likely the first among…more.

The Obama administration tested the waters with an extreme gambit. They’ve now established that this court, in its current make-up, will rule in favor of the churches against overt threats to the most fundamental of our religious freedoms. I expect that if Obama is re-elected, we’ll see continued–but measured–attempts to weaken religious freedoms, as it attempts to discern precisely where the lines are, and how they may be crossed. Chief Justice Roberts appears to acknowledge as much, in writing the opinion.

Meanwhile, this is very good–yes, reassuring–news.

For now.

Shot across the bow noted.

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Nov 14

Shouldn’t that have been determined before it was passed?

Though one recalls former House Speaker Nancy Pelosi saying they had to pass the bill to know what was in the bill. Which was too gigantic for anyone in Congress to have actually read in the short time given before the final vote after rancorous battle and arm-twisting in congressional meeting rooms.

Putting aside for the moment other issues of contention with ‘Obamacare’ as it passed and continues to unfold, the main challenge is a basic one.

Is President Obama’s health-care overhaul constitutional or not?

It’s a question we’ve been asking here on this blog for a long time — and well before the law was passed in March of 2010. At last, some resolution is on its way.

All the top legal experts have been asking and working and preparing for this all along.

The Supreme Court of the United States today agreed to hear several ObamaCare challenges – putting the issue of the constitutionality of the flawed law front-and-center with a decision by the high court just months before the November 2012 elections.

This is the day we have been waiting for. It was clear that ObamaCare would ultimately be decided by the high court when it was signed into law nearly 20 months ago. By taking these cases, the high court can bring clarity and end the confusion about a law that most Americans have consistently opposed. We have argued from the beginning that ObamaCare – including the individual mandate – is unconstitutional.

That always seemed like the clearest question to answer on this convoluted package of plans and rules.

Here’s what’s clear – most Americans oppose the health care law. They have since it was passed more than a year-and-a-half ago. Now that the pro-abortion, government-run law is before the Supreme Court, we want to hear from you. It’s now more important than ever for you to voice your opposition to this flawed health care law.

ACLJ gives citizens the opportunity on that site to add their name to the amicus brief the law center is filing with the Supreme Court, along with over a hundred members of Congress.

CNN Senior Legal Analyst Jeffrey Toobin stated the obvious when he said this case has huge political implications.

“But I think it’s likely to be a close question in the Supreme Court, and it is certainly the most important case that the court has had since Bush v. Gore 11 years ago,” Toobin said.

Indeed.

And ‘No drama-Obama’ is now another catchy campaign slogan that seems like a distant memory.

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Aug 20

The public display of the Ten Commandments. Maybe they’re noticing that the Supreme Court building displays Moses and the Ten Commandments, along with other important historical symbols of law and lawgivers.

For the fourth time since 2005, the ACLU has been defeated in its cause to remove the Ten Commandments from a larger educational display of ‘Foundations of American Law and Government.’ And once again

The ACLU chose not to ask the U.S. Supreme Court to review the case, and now the time has expired to make such a request.

Mathew Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, was the prevailing counsel in the latest appeals court case, and he’s hoping it’s a closed one now.

“The Ten Commandments are part of the fabric of our country and helped shape the law. It defies common sense to remove a recognized symbol of law from a court of law. The ACLU might not like our history and might run from it, but the fact remains that the Ten Commandments shaped our laws and may be displayed in a court of law.”

Right. Now how many can you name? (Here’s help.)

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Aug 09

Now that Elena Kagan has been sworn in as the newest Supreme Court justice, some of the media are musing over what we might expect over the next session or so. Interesting, how they’re framing the issues…

Like this LA Times piece.

The justices soon will be called upon to decide whether states like Arizona can enforce immigration laws, whether same-sex couples have a right to marry and whether Americans can be required to buy health insurance. Kagan’s record strongly suggests she will vote in favor of federal regulation of immigration and health insurance and vote to oppose discrimination against gays and lesbians.

This is cloudy terminology.

Arizona passed a law that applied (and therefore favored) federal regulation of immigration. But it’s been distorted in the reporting.

Federal regulation of health insurance is a broad phrase, but what the court will no doubt face is the challenge by the states to the federal mandate to purchase health insurance, which they claim is unconstitutional.

And the suggestion that Kagan will likely “oppose discrimination against gays and lesbians” is also purposely nebulous. People of goodwill tend to oppose discrimination against other people. Let’s talk, instead, about laws and social policies regulating what people do. We’ll be doing plenty of that come Fall, when the mid-term elections heat up and the Supreme Court opens its new session.

So here’s a request for big media: watch your language.

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