The ACLU's Versatile First Amendment

    The ACLU has long been the target of critics who claim that, with a few exceptions, the organization is far more concerned with liberalism than liberties, its name notwithstanding. Two recent posts on the ACLU website will bolster the arguments of the critics, of whom I count myself one.   On April 3, 2013, the ACLU weighed in on a case currently before the Supreme Court:

Yesterday, we filed a friend-of-the-court brief in the Supreme Court in a case called United States Agency for International Development v. Alliance for Open Society International, opposing the so-called "Anti-Prostitution Pledge." The Pledge is a requirement that public health organizations who wish government funding for their work combatting AIDS and other diseases make a formal statement "opposing prostitution." 

The Pledge puts organizations in a quandary: On one hand, they can take the government's money and say something they might not really believe, have no opinion about, or see as a complex social issue irreducible to anything as simpleminded as "opposing prostitution." On the other hand, they can take a principled stand against the Pledge, forfeiting a share of billions of dollars in government aid that they could otherwise put to good use curbing disease and relieving human suffering. 

As we argued to the Supreme Court, the Constitution forbids the government from engaging in such moral compulsion. The First Amendment is, at its core, a shield against government intrusions into belief. When the government attempts to compel adherence to its view on any issue, it invades our very minds.... 

... the Supreme Court has made it clear that – whatever else the government may do – it may not dictate personal thoughts or beliefs. Any attempt to do so does violence to human dignity and distorts public debate.

    A conservative, especially a religious one, might be inclined to Amen the characterization of the First Amendment as "a shield against government intrusions into belief." The ACLU, however, finds that shield to have limited application on the judicial battlefield.  Contrast the stirring defense of "personal thoughts or beliefs" with the position the ACLU takes on the "contraceptive mandate" that is part of the Affordable Care Act:

[T]he ACLU and the ACLU of Illinois filed a friend-of-the-court brief in two additional appeals challenging the Affordable Care Act's ("ACA") contraceptive coverage rule... 

The contraceptive rule, which requires health plans to include coverage for contraceptive care without a co-pay or deductible, ensures that millions of women will have access to affordable birth control, and represents one of the greatest advancements for women's health in decades. Ignoring this fact and the fact that the contraceptive rule is constitutional, the companies and their owners argue that providing health insurance coverage for contraception to their collective 1,168 employees imposes a "substantial burden" on their religious exercise. We strongly disagree... 

As we noted in the brief, the contraceptive rule does not compel or coerce employers to use or purchase contraception themselves. The rule simply requires employers to provide their employees with a comprehensive health plan.

    The ACLU has taken a constitutional stance that allows no conditions to be imposed on an organization receiving taxpayer money, yet permits the government to coerce an organization to spend its own money in violation of its beliefs.  The values and priorities of the ACLU have created this ludicrous pairing of positions that would be comical if the stakes were not so high.  The First Amendment "shield" is not strictly a defensive weapon for the ACLU, but, depending on the objective, can be used as a bludgeon as well.

Impeach Scalia!

    The White House's 21st century version of the Suggestion Box, "We the People" Petitions, often draws eccentric and even outlandish proposals, such as the recent call to build a Death Star, a la Star Wars.  The White House even responded with a tongue-in-cheek explanation of why the administration would not get behind this particular idea.  (The answer even included this hilarious assertion: "We're working hard to reduce the deficit, not expand it.")  More recently, an (apparently) earnest petition appeared calling for the impeachment of Supreme Court Justice Antonin Scalia.

WE PETITION THE OBAMA ADMINISTRATION TO:Call for the Impeachment of Justice Antonin Scalia for violating the oath of the office. 

Justice Scalia stated that the continuation of Section 5 of the Voting Rights Act represented the "perpetuation of racial entitlement," saying that lawmakers had only voted to renew the act in 2006 because there wasn't anything to be gained politically from voting against it. The oath of office requires that I [sic] he remain impartial and protect all persons rights equally under the law. His statement indicates he not only is not impartial, but also is trying to circumvent the constitution. The legislature put in place laws to protect right to vote for all Americans. His statements are political in nature and indicates that it is his duty to circumvent the actions of the two other branches of government.

    Justice Scalia is certainly no stranger to controversy and calls for his impeachment are nothing new.  However, the unique approach of this petition is entertainingly ironic.  The last half of the petition teaches a short civics lesson on how the U.S. government is intended to function and how Scalia is "trying to circumvent" the founding document.

    There's just one problem.  While the petition calls for "the Obama administration to call for the Impeachment of Justice Antonin Scalia," the Constitution is pretty clear on this matter.  Article I, Section 2 states: "The House of Representatives shall ... have the sole Power of Impeachment."  Article I, Section 3 goes on to say: "The Senate shall have the sole Power to try all Impeachments."  The Executive Branch serves no function in the impeachment process.  The petitioner is asking the Obama administration to insert itself into a matter which, one might say, would "circumvent the constitution" and the principle of separation of powers.  Well, as Barney Fife used to say, fight fire with fire.

A Taxing Morning for the President

    Jake Tapper reports on the confusion at the White House as the Supreme Court decision on ObamaCare was handed down this morning:

Standing with White House chief of staff Jack Lew and looking at a television in the “Outer Oval” featuring a split screen of four different networks, the president saw graphics on the screens of the first two cable news networks to break the news — CNN and Fox News Channel — announcing, wrongly, that he had lost.
Senior administration officials say the president was calm.
A couple minutes later, White House counsel Kathy Ruemmler came to Outer Oval and gave him two thumbs-up. Ruemmler had gotten the correct information from a White House lawyer at the Supreme Court and from SCOTUSblog.com.
“The Affordable Care Act has been upheld by the court,” Ruemmler told the president, a senior administration official recalled. “There were five votes finding it valid under Congress’s taxing power.”
There was some “cognitive dissonance” given what was on the cable news screens, an official said.The president hugged Ruemmler, officials recalled. He then called Solicitor General Donald B. Verrilli to congratulate him.

Obviously left out of this account is the part where the president said, "'Taxing power'?  No, no, no!  Who wrote the opinion, George Stephanopoulos?  And what's the deal with "five votes"?  This country is too divided.  Call McConnell and Boehner.  We're repealing ObamaCare until we can reach common ground."

Supreme Court Upholds the Individual Suggestion

    I've only read two or three pages of the Supreme Court Obamacare ruling, but "incoherent" is the word that dominates my reaction so far.  Congress cannot compel anyone to buy health insurance, but they can tax anyone who does not.  However, it's not really a tax, but a penalty; otherwise, the Anti-injunction Act might apply.  But it is a tax, because it's justified by Congress's power to tax.  And it's collected like a tax and paid like a tax.  But it's not really wrong if you don't buy health insurance:

 Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.  And Congress’s choice of language— stating that individuals “shall” obtain insurance or pay a “penalty”— does not require reading §5000A as punishing unlawful conduct.  

 We waited three months for this?

ObamaCare Prediction: No Decision, Rehearing in Fall

    After a brief twitter conversation with James Taranto this evening, I've decided to blog my prediction just in case it comes true and makes me look like a genius.  My theory is that court will decide that it needs to consider overturning Wickard v. Filburn, just as in 2009 the court ordered a rehearing of Citizens United to consider overturning Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC.  A restoration of the Commerce Clause to pre-Wickard interpretation would certainly warrant further consideration based on the explosion of power Congress has asserted through that clause in the intervening years.  There would also be the added benefit of removing the ObamaCare ruling from the election year perhaps shielding the court from charges of politicking (although as Taranto pointed out, this objective would not be served by asking for briefs on reversing Wickard.)
    In a cruel stroke of irony, such an announcement would probably overwhelm the U.S. healthcare system due to the collective heart attacks and strokes suffered by the millions who are already being driven to distraction awaiting the outcome.
    Eleven hours and counting...

UPDATE:  On second thought, never mind.

Supreme Hypocrisy

    Throughout his presidency, Barack Obama has had an adversarial relationship with the Supreme Court.  The most memorable and arguably most egregious display of his disdain for the court came during his 2011 State of the Union address in which he criticized the recent campaign finance ruling in the presence of most of the justices who were attending his address.  Then earlier this year, he made some absurd statements about what it would mean if the court strikes down Obamacare in the ruling that is likely to come on Thursday.  The gist of his remarks and of many on the left is that the court is seriously ideologically divided between reasonable moderates (and possibly a liberal or two) and an extreme right-wing cabal.  This framing of the court and its decisions must be considered when reading his remarks on today's Arizona v. United States illegal immigration ruling:

I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform...    

At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally.

    What the president leaves out is that the part of the ruling that pleases him was decided by a polarized 5-3 vote (Justice Kagan recused herself.)  On the other hand, the sole part of the Arizona law that was upheld and caused the president to "remain concerned" was decided unanimously, 8-0.  So much for peace, harmony and civility.

    As is often the case, the left's call for bi-partisanship and unity is limited to outcomes that fall in its direction.  If the decision on Obamacare's provisions is also split in various ways, look for a similar pattern: lip-service to harmony and consensus, but "deep concern" and "outrage" if the court hands liberals a loss, no matter how the votes tally up.

President Obama v. SCOTUS

April 3, 2012 (At an Associated Press luncheon, in response to a question about the Supreme Court and his health care legislation.)

"The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.  It's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress."

Versus...

January 27, 2010 (Addressing the nation in the State of the Union address with six of the nine Supreme Court Justices in the audience.  The President refers to the Citizens United case.)

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

Scalia Widely Misquoted as "We're Not Stupid"

    Once exchange that received a lot of attention from Tuesday's Supreme Court session was between Solicitor General Donald Verrilli Jr., Justice Antonin Scalia, and Justice Elena Kagan.  The transcript available at Politico records the exchange as follows:

6 JUSTICE KAGAN: And this is especially true,
7 isn't it, General -­
8 GENERAL VERRILLI: — because that's the
9 judgment Congress has made.
10 JUSTICE KAGAN: — Verrilli, because in this
11 context, the subsidizers eventually become the
12 subsidized?
13 GENERAL VERRILLI: Well, that was the point
14 I was trying to make, Justice Kagan, that you're young
15 and healthy one day, but you don't stay that way. And
16 the — the system works over time. And so I just don't
17 think it's a fair characterization of it. And it does
18 get back to, I think — a problem I think is important
19 to understand -­
20 JUSTICE SCALIA: We're not stupid. They're
21 going to buy insurance later. They're young and — and
22 need the money now.

"We're not stupid" appears to be a rather harsh come back from Scalia, and perhaps even defensive or petulant.  The problem is, that is not what Scalia said.  Carefully listening to the audio reveals that Scalia said "These people [the young and healthy] are not stupid."   The Daily Caller, who has linked to the audio and originally repeated the same mistake (as evidenced by the URL of the Daily Caller link: "were-not-stupid/",) has now corrected its transcript.  But a Google search of the past 24 hours (as of 1:35 PM Wednesday) returns 3,830 hits on "we're not stupid" and only 150 on "people are not stupid".)  Even Drudge as of late morning (see screenshot) still had "We're not stupid..." linking to the Daily Caller story, although it had been removed as of this posting. This is a good example of how an urban legend can get started.  We'll see how well the media does today in correcting themselves.

Update:  Even the transcript on the Supreme Court's own website made the correction: "These people not stupid."  Many news sites and blogs, however, continue to report the wrong version.

This post (before the update) was originally published on March 28, 2012 at Blogger News Network.

The Mandate (Let Us Help You Learn To Help Yourself)

    Beginning on Monday, the Obama administration will argue for the constitutionality of the Patient Protection and Affordable Care Act before the Supreme Court.  If the Obama administration is completely convinced of the constitutionality of both the mandate and the fine that will be assessed on individuals choosing to defy the law and not purchase coverage, then why not simply make the fine large enough to cover the premium and buy coverage for them in the private health insurance market?  If the success of the plan is contingent upon everyone having health insurance and that in turn bringing down costs, then the ability of a certain percentage of the population to pay a small fine and avoid coverage will undermine the rationale for the entire program.  Government purchase of coverage on behalf of those who refuse voluntary participation would certainly place no greater burden on individual freedom than the mandate itself.  So why not a larger "fine"?
    Would the size of the fine determine its constitutionality?  Of course not.  The Obama administration is in fact counting on a certain segment of the population declining coverage and paying the fine because generally speaking, that segment (mostly the young and healthy) will not access the healthcare system in large measure anyway.  The fine is merely a revenue generator that the government keeps rather than being surrendered to an insurance company as would be necessary if the fine were actually purchasing coverage.  It provides a convenient revenue stream with no related costs (other than enforcement.)
    This policy maneuver is similar to the dynamic at work with cigarette taxes.  The government refuses to actually make cigarettes illegal, and yet heavily taxes them in order to ostensibly reduce their usage and thereby reduce the associated health risks and costs.  But the government benefits from the taxes paid by those cigarette users to such a degree that it would be fiscally damaging to wipe out smoking altogether. The government has done a cynical cost-benefit analysis to keep the money flowing.
    Cigarette taxes and ObamaCare are both examples of money and power grabs disguised as compassion.  While the public has diminishing sympathy for a "right" to smoke (and understandably so,) the right to make decisions about health insurance still enjoys widespread support with 56% in favor of repealing the ObamaCare mandate according to Rasmussen's latest poll.  Now the Supreme Court will have to decide if the government's need to "regulate commerce" in this heavy-handed manner trumps individual freedom to make choices about one's own health.


This post was originally published on March 23, 2012 at Blogger News Network.

Taking the Fight Back to the Court?

    In January, the Supreme Court ruled unanimously that federal discrimination laws do not impair the right of churches under the First Amendment to determine who may serve in ministerial positions.  This knockout punch to the Obama administration's position was met with fairly muted reaction from the left.  Without the support of even one of the court's liberal justices, there is little to be gained by publicly denouncing the outcome of the case.
    However, within two weeks of the court's decision, Secretary of Health and Human Services Kathleen Sebelius announced that rules governing health insurance mandates would offer no accommodation to religious institutions.  The requirement that birth control, contraceptives, and abortifacients be provided at no cost by all insurance plans understandably created a conflict of Biblical proportions.  The forthcoming "compromise" was no such thing in the eyes of many, and one has only to look at the whole-hearted supporters of the "compromise" (Planned Parenthood, Nancy Pelosi, Al Sharpton) to confirm it was hollow.
    Much of the debate in recent weeks has centered around the application of the mandate being a violation of the freedom of religious institutions by compelling them to facilitate behaviors that violate their principles and pay for them as well.  The "compromise" purported to allay those concerns but largely failed to do so.  But a potentially equally serious conflict lurks in this HHS-provoked controversy as well.  As long as the "compromise" is in effect, religious institutions, at least from the administration's point of view, have technical deniability for "conscience" sake.  But suppose a religious institution fires or disciplines an employee for moral reasons for using an abortifacient drug to end a pregnancy?  After all, it's a drug that is covered by a health insurance plan that they are providing to the employee.  How will the institution justify their actions?  Aren't they being forced into the position of saying to their employees, "Here's a benefit, but don't use it or you're fired"?  If religious institutions are lumped into the same category as secular ones, more lawsuits for wrongful termination of employment are inevitable.
    Contained in Robert's opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is the following:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her.  Today we hold only that the ministerial exception bars such a suit.  We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.  There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

The Obama administration apparently took that last sentence as a challenge.  Their broadside against religious freedom, barring a change in the Oval Office in November, has put the President and his policies on a collision course with the high court.  There will doubtless be skirmishes in the lower courts in the meantime, but it is difficult to imagine that ultimately a showdown revisiting the broader issues at stake in Hosanna-Tabor v. EEOC can be avoided.
    Although President Obama has been accused even by his supporters of backing down in various confrontations, this has not been the case in the realm euphemistically known as "women's health" even when religious liberties were at stake.  We can expect the President to have his game face on for this battle.  To paraphrase the President, a unanimous Supreme Court brought a knife to the fight.  President Obama will bring a gun.