Bench Memos

NRO’s home for judicial news and analysis.

Combative Bench Grills IRS in Halbig v. Sebelius


There were fireworks at the D.C. Circuit today as the IRS and HHS squared off against appellants challenging the IRS’s power grab in Halbig v. Sebelius. I attended arguments today and provide the following synopsis. (Carrie Severino has discussed the district court’s opinion here, here, here, and here. Carrie also filed an amicus brief in the case.) 

The central question is: Does the phrase “established by the State” actually mean what it says, or is that just a fancy way of saying “established by either the State or by the federal government?” At issue is a tax subsidy that the IRS currently grants to anyone who buys health insurance on an exchange under Obamacare. The plain language of the statute says that the subsidy only applies to insurance plans in states that have established an exchange, apparently as an incentive for states to start their own exchanges. But the IRS has decided that the tax subsidy should apply to every state, no matter who established the exchange. The problem, as these challengers point out, is that the IRS’s interpretation turns the actual language on its head.

Though news media have largely ignored this case so far, today’s argument should wake them up. We already had indications that today would be interesting. For starters, DOJ (which represents the IRS in arguments) filed a letter with the court only a couple of weeks ago stating essentially that because this wasn’t a class action, the IRS might consider not abiding by an order enjoining enforcement of its regulation. Two judges brought that “improper” filing up at the end of the argument today, admonishing the DOJ lawyer for filing it against court rules. When the poor DOJ lawyer had no ready response (one imagines it wasn’t his idea), the third judge advised him to just conclude his argument and sit down.

There were plenty of fireworks on the merits. Right at the beginning, Judge Edwards (a Carter appointee) began an aggressive line of questioning pressing appellant’s counsel, Michael Carvin, to explain where the legislative history showed that one of the purposes of Obamacare was to incentivize states to start state-based health-care exchanges. Judge Edwards’s point was apparently that “no one” who voted for the Affordable Care Act intended to encourage states to create health-insurance exchanges. (Which is an odd thing to say, since Congress explicitly created a mechanism to do so.) Carvin could barely get his answers out because of repeated interruptions by Judge Edwards, prompting Judge Randolph to suggest specific examples of the legislative history that Judge Edwards was seeking.

The two other judges, Judges Griffith and Randolph, both Republican appointees, seemed genuinely puzzled by the basis for the government’s interpretation of the phrase, and spent most of the government’s argument trying to divine a coherent interpretive methodology underlying the IRS’s position. Judge Griffith was most pointed in his skepticism, at one point asking the DOJ attorney to parse the phrase “established by the State under [Section] 1311,” which he more or less couldn’t accomplish without compromising his litigation position. DOJ counsel also conceded that the exchange in West Virginia (where one of the appellants lives) was “established by” the Secretary of Health and Human Services, not the State of West Virginia, but refused to concede defeat on those grounds.

Today’s argument acutely demonstrated the dangers (and even absurdity) of broadly purposive statutory interpretation, which is readily susceptible to manipulation of the generality of the purpose. At one point, [Update, 4/11/2014] Judge Edwards the DOJ attorney claimed that because the statute was entitled the “Affordable” Care Act, the court should construe it so care would be affordable. This problem was even more evident in Judge Edwards’s repeated arguments that amounted to: “Nobody understood Obamacare to create a preference for state-run exchanges, so there is no reason why we should construe the text this way.” But it’s not surprising that there is relatively little legislative history or publicity devoted to the mechanics of a single technical provision of a hulking statute like Obamacare. Members of Congress and its staff are unlikely to generate legislative history interpreting a statute they haven’t read. As we all remember, Congress had to pass the law to find out what was in it.

The more important point, though, is what an “everybody-knew-it-but-nobody-says-it” canon of construction suggests about the law, the courts, and the Constitution. It implies that the role of the judge is to, as Michael Carvin put it, “psychoanalyze” Congress to find out what they did or didn’t know or think. This is especially true for a long, complicated statute like the Affordable Care Act, which typifies congressional sausage-making. There are so many cross-cutting purposes, gambles, tradeoffs, and compromises that for a court to pick a single, broad “purpose” and use it to construe the statute simply ignores all other possible “purposes” that Congress nevertheless enacted into the text of the law.

As Judges Griffith and Randolph asked the DOJ at the end of the argument, is it really the court’s constitutional role to “fix” a statute if that would mean construing it in a way that upsets the balance that Congress, however unwisely, enacted? At the end of the day, the court’s responsibility is to interpret the legislation based on what Congress has actually passed, not what it hasn’t said or what “everyone” knew or didn’t know.

A 2-1 panel decision seems likely, with Judges Griffith and Randolph firmly in favor of applying the plain meaning, and with Judge Edwards against the plain meaning. If the appellants win and the court declares the regulation ultra vires, the government would likely petition for en banc rehearing to the newly-packed D.C. Circuit to delay or reverse the effect of the panel’s decision. Based on what I saw today, though, this case may very well make its way to the only court that trumps the en banc D.C. Circuit.

[Update, 3/25/2014, 4:52 PM: Audio recording available here.]

Hobby Lobby Recap: Kennedy the Swing Vote, But Breyer Wavers Too


Today the Supreme Court heard arguments in the Hobby Lobby and Conestoga Wood cases challenging the HHS contraceptive mandate. Defenders of religious liberty have much to be optimistic about in today’s arguments, but the outcome is far from clear. The justices’ questions broke down along typical liberal/conservative lines — Justice Kennedy offered questions on both sides, but Justice Breyer had a few comments that were surprisingly harsh to the government.

For those unfamiliar with the case, Ed has done a great job previewing the issues in great detail. The case will turn on the Religious Freedom Restoration Act, which effectively creates a statutory exception from laws that substantially burden the exercise of religion unless the law advances a compelling government interest and is the least restrictive means for doing so. A threshold issue is whether RFRA protections are even available to for-profit corporations like Hobby Lobby and Conestoga.

On the threshold question, Justice Sotomayor took the lead, challenging Paul Clement, who argued for both Hobby Lobby and Conestoga Wood, to show how corporations practice religion. Solicitor General Verrilli joined her in his argument, focusing on the challenges presented in determining what a business’s religious practice is when its board or shareholders disagree and the issues presented by a lack of evidence that it’s being run according to religious principles.

This, Clement responded, is chiefly a question of sincerity, which is something the courts are accustomed to looking at in such cases. The chief justice — often looking for the most “narrow” grounds on which to decide a case — suggested that the Court could simply limit its decision to closely held businesses like those in the case, obviating the shareholder-disagreement issue. He speculated that publicly held corporations that would be able to claim they were sincerely exercising religion are vanishingly rare, so the Court probably would never have to decide that harder question. Justice Kagan, despite being one of the clearest votes for the government today, signaled that even she felt this threshold question was a loser for the solicitor general.  

Justice Alito’s questioning highlighted the ad hoc nature of the government’s distinction regarding for-profit corporations. He prompted the solicitor general to concede that RFRA applied to nonprofit corporations — meaning nothing inherent in the corporate form made the law inapplicable — as well as to for-profit businesses if they’re organized as sole proprietorships or partnerships. Thus, Verrilli conceded, nothing about entering the marketplace itself puts one outside the bounds of RFRA. Even Justice Breyer agreed with the challengers on this point, and questioned the solicitor general as to why a kosher butcher should suddenly lose its free-exercise claim once incorporated.

Justice Kennedy put the solicitor general into the uncomfortable position of admitting that its arguments would mean for-profit hospitals could be forced to perform abortions, even if that violated their conscience rights. Verrilli’s obvious discomfort at admitting this further evidenced the degree to which the government’s hostility to the religious objectors in this case turns on its disagreement with their theology. After all, regardless of the government’s position on when life begins, Hobby Lobby and Conestoga Wood believe it begins at conception, meaning that, for them, the contraceptives they object to can cause the death of a human being. From the perspective of the parties in this case, the government is forcing them to pay for abortions, and the Court must view the religious burden from that perspective, rather than second-guessing their theology.

Keep reading this post . . .


Quick Review of Hobby Lobby Oral Argument


I didn’t attend this morning’s argument and will therefore reserve my own reading of the tea leaves until after I’ve reviewed the transcript. For what it’s worth, one person who did attend and who is very knowledgeable about the issues in the case (but who might suffer from an overly optimistic temperament) has given me his quick take. He sees a 6-3 victory for Hobby Lobby, with Kennedy and Breyer joining the conservatives on the bottom line. (Apparently, Breyer’s questions reflected his recognition that—as I discussed in this post—the accommodation that the Obama administration provided religious nonprofits is a less restrictive means—and that the HHS mandate therefore flunks RFRA.)

We shall see. I’d be very surprised and impressed if Breyer is willing to stand against the three women justices.  

Update: Another well-informed observer offers a similar assessment. The argument “went very well” for Hobby Lobby. He thinks that Hobby Lobby may win on the threshold issues (corporate exercise of religion, substantial burden) by a 7-2 margin and seems likely to win on the strict-scrutiny test by 6-3 or maybe 5-4. (These predictions, of course, are worth what you pay for them.)

Further update: Lyle Denniston sees it as 5-4 one way or the other, with Kennedy as the decisive vote.

This Day in Liberal Judicial Activism—March 25


1987—So much for the express ban on employment discrimination set forth in Title VII of the Civil Rights Act of 1964. Justice Brennan’s majority opinion in Johnson v. Transportation Agency holds that a Santa Clara County agency “appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted.”

Never mind that the county’s affirmative-action program explicitly embraced the goal of racial and sex quotas (“attainment of a County work force whose composition … includes women, disabled persons and ethnic minorities in a ratio in all job categories that reflects their distribution in the Santa Clara County area work force”). And never mind that, according to the undisturbed findings of the district court, the county had never discriminated against women in employment and that Joyce’s sex was the “determining factor” in her selection.

As Justice Scalia points out in his dissent, Title VII speaks with “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship.” But the Supreme Court “completes the process of converting [Title VII] from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will, and it thus “replace[s] the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and sex in the workplace.” In sum: “A statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism, not merely permitting intentional race- and sex-based discrimination, but often making it, through operation of the legal system, practically compelled.”

1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, later Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution. Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution. Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it’s difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity. So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs.

C-SPAN Tomorrow


I’ll be on C-SPAN tomorrow, from roughly 8:15 a.m. to 9:15 a.m. ET, to discuss the HHS mandate cases that will be argued in the Supreme Court a bit later in the morning.


Pennsylvania AG Turns on Own Law Enforcement Community


Recent months have seen a spate of incidences of politically-motivated dereliction of duty by state attorneys general who refuse to enforce the laws based on their own preferences. What we didn’t know – until now – was how big this pattern of politicization would be.

Answer: Big. The Philadelphia Inquirereports that last year, Pennsylvania attorney general Kathleen Kane spiked an undercover corruption investigation that had recorded several high-profile Philadelphia Democrats accepting money as quid pro quo for contracting or voting. All in all, the investigation’s undercover informant collected 400 hours of damning audio and video. At least four Democrats were recorded taking cash or money order payments ranging from $500 to $2,000, according to the Inquirer.

It’s no surprise that Kathleen Kane is wrapped up in this. She has been a poster child for irresponsible nonenforcement, being one of the first state attorneys general to defy her oath of office by refusing to defend the state’s marriage laws. This political nonenforcement trend is dangerous for the rule of law in an adversarial system, which presupposes a vigorous defense of client interests by both sides, and is even more dangerous in a constitutional system, where the attorney general is the primary official charged with defending democratically-elected laws. 

There’s nothing unusual about declining to file charges if no wrongdoing is discovered, but one of Kane’s defenders admits that there was wrongdoing by these Democrats, calling it “alarming.” That’s all it is? Alarming? Even with hundreds of hours of evidence already in hand, the decision not to prosecute effectively protects Kane’s fellow Democrats without giving them so much as a slap on the wrist.

To make matters worse, Kane tried to deflect blame by playing the race card, accusing an experienced lead prosecutor and the lead investigative agent of racism. Wanton accusations of racism or bigotry are always troubling, especially when leveled by state’s chief law-enforcement officer at those charged with enforcing the law. This accusation is particularly absurd because both the agent and the primary informant were minorities and because at least one white legislator is reported to have accepted a gift as part of the sting. 

Worse still, Kane is now going on the offensive, trying to silence the Inquirer and its sources. On Thursday morning, she made a big show of hiring a well-known defamation litigator to investigate the Inquirer’s sources and gave an interview saying that the “major problem” was really the $20,000 in taxpayer money lost in the sting and the loss of public “trust in their government.” Pennsylvania Democrats should be embarrassed that their attorney general is so threatened by public criticism. It’s hard to imagine that anyone is buying her defense. Even several defense lawyers think this is strange.

The likely effect of all this will be to chill future corruption or ethics investigations of Democrats and any other politicians close to the attorney general. Which is probably the point.

This Day in Liberal Judicial Activism—March 24


1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice.

This Day in Liberal Judicial Activism—March 23


1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent:

I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.

2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.

This Day in Liberal Judicial Activism—March 22


1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Argentina Lining Up Amici, But How?


Forbes asks whether Argentina is using quid pro quo to convince other countries to file amicus briefs in an upcoming Supreme Court case against its bondholders:

However, there are some indications that Argentina has paid for one or more of the anticipated amicus filings.  The Supreme Court takes a dim view of that practice; it wants each amicus filer to truly be a “friend of the court,” not a “friend of a party.”  The Court does not strictly prohibit the filing of amicus briefs that have been paid for by a party.  But it requires that the fact of payment be explicitly disclosed in the opening footnote of the amicus brief.

Re: Can a For-Profit Corporation Have a Racial Identity?


In a Public Discourse essay titled “If a Company Can Be African American, Can’t It Be Religious,” Matt Bowman of the Alliance Defending Freedom nicely develops the implications of the recent Fourth Circuit ruling on corporate racial identity that I highlighted two weeks ago. (Bowman and ADF represent Conestoga Wood Specialties in its pending Supreme Court challenge to the HHS mandate.)

Bowman sums it up: “It would be hard to come up with a more blatant contradiction between what the government rejects as absurd in Conestoga and Hobby Lobby, and what it considers a given when it comes to combating racial discrimination.”

This Day in Liberal Judicial Activism—March 21


2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

UPenn Symposium on “Dictating Conscience”


I’m grateful to be the keynote dinner speaker at a March 31 symposium, titled “Dictating Conscience: Law as a Cultural Weapon,” at the University of Pennsylvania law school.

The afternoon-and-evening event, sponsored by the law school’s Federalist Society chapter, also features a talk by Princeton professor Robert P. George on “Mill and Newman on Liberty and Conscience” and panel debates on the HHS mandate cases and on marriage.

For you lawyers out there, I’ll highlight that CLE credit is available.

Important Elane Photography Cert Petition


Teed up for action at the Supreme Court’s conference tomorrow is Elane Photography’s cert petition raising a fundamental question on First Amendment speech rights: May a photographer be punished for refusing to create expressive images and albums that conflict with her beliefs?

Law professors Eugene Volokh and Dale Carpenter, who identify themselves as “supporters of same-sex marriage who also believe that photographers, singers, writers, and other creators of expression have a First Amendment right to choose which expression they want to create,” have submitted a strong amicus brief in support of Elane Photography’s petition. Volokh and Ilya Shapiro of Cato, who co-authored the brief, also had this op-ed in the Wall Street Journal earlier this week.

Let’s hope that the Court grants review and clarifies this important area of the law.

Selected Posts on Hobby Lobby


In advance of next Tuesday’s oral argument in the HHS mandate cases, here’s an outline of posts of mine that bear on the major issues:

1. Does the HHS mandate substantially burden the plaintiffs’ exercise of religion?

a. Is a for-profit corporation categorically incapable of engaging in an exercise of religion for purposes of RFRA? [No]

EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations

EPPC Amicus Brief on Meaning of “Exercise of Religion” in RFRA

EPPC Amicus Brief on Government’s Parade of Horribles

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 1

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 1

Can a For-Profit Corporation Have a Racial Identity?

b. Is the burden of which plaintiffs complain too attenuated and remote to be substantial? [No]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2

Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2

c. Are the individual plaintiffs burdened by the HHS mandate? [Yes]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2 (last paragraph)

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2 (last paragraph)

2. Can the government satisfy both prongs of the strict-scrutiny test? [No]

a. Does the HHS mandate further a compelling governmental interest? [No]

On the HHS Mandate’s “Sieve” of Exceptions

DOJ’s Reply Brief in Hobby Lobby—Part 2

DOJ’s Reply Brief in Hobby Lobby—Part 3

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

b. Is the HHS mandate the least restrictive means of furthering the asserted governmental interests? [No]

[Addendum:] The “Accommodation” as Less Restrictive Means

DOJ’s Reply Brief in Hobby Lobby—Part 1

The HHS Contraception Mandate vs. RFRA—“Least Restrictive Means”

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

There are also some tangential issues that I’ve addressed in detail. On the irrelevance to the substantial-burden inquiry of the fact that large employers do not have a legal duty to provide health insurance, see:

Substantial Confusion on RFRA’s “Substantial Burden” Requirement?

Reply to Lederman on “Substantial Burden”—Part 1

Reply to Lederman on “Substantial Burden”—Part 2

On whether the drugs and devices that Hobby Lobby objects to can operate to kill human embryos, see:

On Embryo-Killing “Contraceptives”

DOJ’s Reply Brief in Hobby Lobby—Part 3


See Part 1 and Part 2

In its reply brief, DOJ trots out an imaginary parade of horribles, even as it continues to disregard the genuinely horrible consequences (see end of this post) that would flow from acceptance of its arguments.

Consistent with the very un-SG-like tone of its entire brief, DOJ extravagantly contends that a victory for Hobby Lobby “would entitle commercial employers with religious objections to opt out of virtually every statute protecting their employees.” (Reply at 19-20.) DOJ offers four supposed examples: Title VII’s ban on employment discrimination, minimum-wage laws, Social Security taxes, and Obamacare coverage for recommended immunizations. (Reply at 20-22.)

DOJ’s sweeping assertions cannot be taken seriously. For starters, strict scrutiny under RFRA is highly context-dependent, so cookie-cutter conclusions about what an exemption from the HHS mandate would mean for other contexts should be rejected.

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.

Further, it’s especially telling that Title VII, the minimum wage, and Social Security were not subject to the kind of grandfathering clause provided for the HHS mandate. When Congress passes a statute to further a genuinely compelling interest, like prohibiting racial discrimination, a potentially indefinite grandfather clause would be wholly out of place. It is hard to imagine Congress passing Title VII but saying that employers can continue to discriminate on the basis of race as long as they don’t change their pre-existing hiring practices. (The grandfathering provision is particularly damning to DOJ’s case because Congress deemed other Obamacare requirements—e.g., that insurance plans cover pre-existing conditions and children up to age 26 who live with their parents—sufficiently compelling that even grandfathered plans must include them.) 

It’s noteworthy that DOJ’s parade of horribles repeats the very examples that Justice Scalia cited in his majority opinion in Employment Division v. Smith. In response to what she called Scalia’s “parade of horribles,” Justice O’Connor maintained that the strict-scrutiny test enabled the courts to distinguish meritorious claims from meritless ones, by making “a case-by-case determination of the question, sensitive to the facts of each particular claim.” She further opined that the courts “have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.” Whether Scalia or O’Connor had the better of the constitutional argument in Smith, it is beyond debate that Congress adopted O’Connor’s position when it enacted RFRA to restore, as a statutory matter, the strict-scrutiny standard that Smith rejected.

Georgetown Religious Freedom Event


Next Monday, March 24–the day before oral arguments in the Hobby Lobby and Conestoga Wood Products cases–the Religious Freedom Project at Georgetown University’s Berkley Center will host an event, “Everybody’s Business: The Legal, Economic, and Political Implications of Religious Freedom,” at the Willard Hotel in Washington, D.C. from noon to 5:30 p.m.  (RSVP, as there is a buffet lunch at noon.)  The keynote of the event will be a conversation between Baylor University’s President Kenneth Starr and Harvard Law School’s Professor Alan Dershowitz, “Beyond Hobby Lobby: What Is at Stake with the HHS Mandate?”  Following that conversation, the balance of the afternoon will feature two panels, one on the Hobby Lobby case and its implications and another on the question, “Is Religious Freedom Good for Business and for the Poor?”  Each panel features outstanding legal and scholarly experts on religious freedom, with different views represented.  It should be a very illuminating afternoon.


Clarence Thomas, Originalism, and the Declaration of Independence


At the Witherspoon Institute’s Public Discourse yesterday, I had an essay, “Declaration Man: How Justice Clarence Thomas Earned His Enemies,” reviewing a fine new book by Ralph A. Rossum of Claremont McKenna College, titled Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration.  Rossum comprehensively reviews Thomas’s opinions since his appointment to the Supreme Court in 1991, and ably describes his eclectic originalism and his willingness to scrape away distorting precedents in order to see the Constitution’s own principles more clearly.  I asked:

Whence comes this devotion to discipline, to constitutional constraint, and its concomitant skepticism about precedent? For Clarence Thomas, it seems to come from the same foundation that undergirds the Constitution itself: the Declaration of Independence.

Alone on the modern Court, Justice Thomas is known to cite the Declaration as a source of legal principle in the decision of cases. For him, the foundation of all our law lies in the self-evident truths of the Declaration, beginning with human equality. His conviction that the Fourteenth Amendment was meant to make good on that truth accounts for his persistent invocation of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), the proposition that the law of the land must be color-blind.

In a brief review, I could not do justice to either Thomas or Rossum, whose book is amazing for its thoroughness and critical care.  Not simply a Thomas cheerleader, Rossum tells his readers where he thinks Justice Thomas’s originalism may go astray, or where he might not have followed his own methods adequately.  It’s hard to imagine a better account of Thomas’s career so far, and I heartily recommend Rossum’s book.  Ditto his earlier book on Justice Scalia.


DOJ’s Reply Brief in Hobby Lobby—Part 2


See Part 1

In its brief, Hobby Lobby argues that the Obama administration can’t meet its burden of showing that the HHS mandate furthers a compelling governmental interest. (Brief at 45-56.) Among other things, the government’s asserted interests in public health and gender equality are too broadly formulated to count in the strict-scrutiny inquiry, and the sieve of exceptions to the HHS mandate contradicts the government’s newly asserted interest in ensuring comprehensive contraceptive coverage.

In its reply brief, DOJ contends that Hobby Lobby “all but ignore[s]” that its position would supposedly “extinguish the statutorily guaranteed rights of [its] 13,000 employees (and their covered dependents) to important health benefits that are part of the employees’ compensation.” (Reply at 1.)  DOJ repeatedly asserts that the Court’s 1982 decision in United States v. Lee defeats Hobby Lobby’s position. (DOJ also offers a parade of horribles; I’ll address that in my Part 3 post.)

Let’s consider some of the flaws in DOJ’s position:

1. What DOJ tries to depict as the unacceptable harm that would be inflicted on Hobby Lobby’s employees is exactly what the grandfathered-plan exception to the HHS mandate allows for tens of millions of employees (and tens of millions more of their covered dependents). Further, the small-employer exception from the employer-mandate penalty gives small employers an incentive to stop providing (or to continue not to provide) insurance coverage at all for their millions of employees.

2. DOJ is doubly wrong to refer to “statutorily guaranteed rights.” The contraceptive coverage of the HHS mandate is an exercise of regulatory discretion, not a matter of statutory right. And, as law professor Marty Lederman, an ardent defender of the HHS mandate, repeatedly points out,* the HHS mandate does not actually impose a legal duty on any employer to provide contraceptive coverage. It thus does not guarantee any rights to employees, who can be thrown at any time into the exchanges, where their supposed right to obtain “cost-free” contraceptive coverage will depend on their willingness to pay for insurance that includes it. (The term “cost-free” means no co-pay or deductible; it doesn’t mean that the laws of economics have been repealed.)

3. A victory for Hobby Lobby would leave its employees with the same legal rights with respect to contraceptives that they had before the HHS mandate: namely, no legal right to compel Hobby Lobby to provide coverage, and the free ability to obtain contraceptives, and contraceptive coverage, on their own.

4. In five separate places, DOJ quotes from two sentences of dictum from the epilogue of United States v. Lee, the case in which the Supreme Court held that the Free Exercise Clause did not entitle a member of the Old Order Amish to an exemption from paying the employer’s share of Social Security taxes. Somehow DOJ never quotes from, or even refers to, the part of the opinion that explains why there was a compelling governmental interest in mandatory employer contributions to the Social Security system:

The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. “[W]idespread individual voluntary coverage under social security . . . would undermine the soundness of the social security program.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 116 (1965). Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government’s interest in assuring mandatory and continuous participation in and contribution to the social security system is very high. [Emphasis added.]

It is difficult to see how anything remotely comparable could be said of the HHS mandate—which, again, does not actually impose a legal duty on any employer to provide contraceptive coverage.

Further, DOJ simply ignores the fact that the Court’s ruling in Lee relies very heavily on the tax context. The Court explains that the “obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes” and that the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious beliefs.” It was “[b]ecause the broad public interest in maintaining a sound tax system is of such a high order” (emphasis added) that the Court declared that “religious belief in conflict with the payment of taxes affords no basis for resisting the tax.” The HHS mandate does not implicate that interest.

5. There is no end to this DOJ’s confusions about religious liberty. Recall that this is the same DOJ that argued in the Hosanna-Tabor case that (as the Chief Justice summarized DOJ’s “remarkable view” in his unanimous opinion) “the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers” and that churches are instead limited to the rights that labor unions and social clubs enjoy.

It’s bad enough that DOJ now has the gall to present itself as a champion of “vibrant religious pluralism.” Even worse, it ludicrously contends that a victory for Hobby Lobby would threaten the “free exercise of religion” of Hobby Lobby employees.

Earth to DOJ: Private employees do not have any “free exercise” right to have their employer provide for their contraception.

* I’ve explained—here and in a two-part reply to Lederman’s response—why I think that Lederman is wrong to contend that the absence of a legal duty on large employers to provide health insurance means that the HHS mandate doesn’t impose a substantial burden.

This Day in Liberal Judicial Activism—March 19


1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.


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