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McCutcheon v. FEC: A Victory for the First Amendment


This morning, the Supreme Court released its final decision in McCutcheon v. FEC, the first case argued this term. I had previously blogged about it here, and as I predicted, the opinion took on a 4–1–4 split. Although I couldn’t say after oral argument which way the decision would go, the court (as I hoped) upheld the First Amendment’s broad protections for political speech, striking down aggregate limits on political contributions (which effectively limit the quantity of races in which a particular donor can give).

I will have more thoughts after I’ve digested the whole opinion (the slip opinion is 94 pages), but here are a few preliminary observations:

The plurality opinion is written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Alito. It focuses mainly on the application of Buckley v. Valeo, a 1976 Supreme Court decision that established a framework for regulating campaign contributions. Buckley recognized that the First Amendment’s protections generally include rights of both speech and association (“Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). Today’s opinion vindicates those constitutional rights within the Buckley framework.

As predicted, Justice Thomas voted to strike down the donation restrictions, writing a separate opinion concurring in the judgment in which he argued that Buckley “denigrates core First Amendment speech and should be overruled.” This is no surprise, given the numerous opinions he has devoted to this issue over the last 18 years. In Justice Thomas’s view, Buckley distinguishes impermissibly between political giving and political spending, allowing less rigorous scrutiny for political giving. Justice Thomas’s opinion, which controls the plurality opinion, will leave us with some interesting questions about what reasoning will bind the lower courts.

Justice Breyer’s dissent on behalf of the remaining justices takes issue with the plurality’s view that “corruption” justifying speech regulations refers to quid pro quo giving. Instead, Justice Breyer articulates his definition of corruption in broad political-theory terms, under which the Supreme Court ensures that politicians will not give “undue influence” or be “too compliant” with their contributors’ views or gain “privileged access to and pernicious influence upon” elected officials. But the plurality opinion rightly dismisses efforts toward these goals as attempts to “fine-tune” the electoral process.

And that dispute introduces the other major problem with this entire system of regulation: whether it is trying to “level the playing field” or something else, policing contributions beyond corruption put the government in the position of limiting and distinguishing the types of acceptable speech, which is exactly what the First Amendment is designed to prevent.

McCutcheon v. FEC


In a 5-4 ruling today, the Supreme Court struck down the “aggregate limits” on how much money a person may contribute in total to all candidates or committees during a two-year election cycle. Plurality opinion (for four justices) by the Chief; broader opinion concurring in the judgment by Justice Thomas; dissent (for four) by Justice Breyer.

(I might write more about the ruling once I have read the opinions.)


Michigan Marriage Fiasco


Now that I have some time, here are some brief observations on the recent (March 21) federal district-court ruling invalidating Michigan’s constitutional provision defining marriage:

1. Federal district judge Bernard Friedman ruled that the Michigan constitutional provision doesn’t survive rational-basis review. As I’ve made clear, I don’t think that the Supreme Court’s ruling in Windsor against the federal Defense of Marriage Act augurs well for state marriage laws. That said, any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard. (In this regard, I’ll note that the First Circuit panel that struck down DOMA found it a simple matter (see page 14 of opinion) to determine that DOMA would survive conventional rational-basis review.) As Prop 8 proponents explained in their Ninth Circuit brief:

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.… [I]t is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing.

2. Judge Friedman’s lawlessness is equally manifest in his extraordinary refusal to stay his ruling pending appeal. Recall that in January the Supreme Court, without recorded dissent, intervened to block federal district judge Robert J. Shelby’s ruling against Utah’s marriage laws from taking effect. As other federal judges have understood, that action clearly signaled that courts ruling against state marriage laws should stay their rulings pending appeal. Unless Judge Friedman is an utter idiot (and I have no reason to think he is), he should have known that his ruling would be stayed by a higher court. (The Sixth Circuit issued a temporary stay the next day and later extended that stay for the entirety of the appeal.) Yet he was happy to unleash the chaos of same-sex couples rushing to marry during the interim.

3. Michigan governor Rick Snyder’s response has been remarkably weak and confused. Despite the fact that the supposed marriages that occurred during the interim are unlawful under the state constitution, Snyder has publicly stated that “we believe those are legal and valid marriages.” To be sure, he has also said that the state won’t recognize them as marriages while the stay is pending. But he has gratuitously undermined his defense of the state constitutional provision by mischaracterizing the supposed marriages as “legal and valid.” He also made it very easy for Attorney General Eric Holder to decide that the federal government would recognize those supposed marriages.

4. Meanwhile, Michigan attorney general Bill Schuette, who recently wrote a fine op-ed explaining why it is his duty to defend his state’s marriage laws, has been oddly silent on how he regards the supposed marriages.

Kagan: “The Dumbest Thing I Ever Heard”


That’s how Elena Kagan, at her 2009 confirmation hearing for the position of Solicitor General, characterized, and thereby distanced herself from, her much younger self’s bizarre understanding of how the Establishment Clause ought to operate. But if Justice Kagan was listening to herself at last week’s oral argument in Hobby Lobby, she has some serious new contenders for “the dumbest thing [she] ever heard.”

In trying to argue that the annual $2000 per employee tax that Hobby Lobby would incur if it chose to drop its insurance coverage for employees meant that the HHS mandate did not impose a substantial burden on Hobby Lobby, Kagan asserted: “But this is not the kind of thing that’s going to drive a person out of business. It’s not prohibitive.” (Transcript, 24:19-21.) Earth to Kagan: There is nothing in free-exercise jurisprudence to support the notion that a burden meets the minimum threshold of “substantial” only if it “is going to drive a person out of business” or is “prohibitive.”

Similarly, Kagan nakedly asserted that the overall cost to Hobby Lobby would be substantially the same if it dropped insurance coverage for employees, paid the penalty, and increased wages for employees to compensate them for the dropped coverage: “we are talking about pretty equivalent numbers,” “Maybe it’s a little bit less; maybe it’s a little bit more.” (Transcript, 24:17-19). In his thorough blog post last Friday, law professor Michael McConnell (elaborating the response that Paul Clement provided at oral argument) demolished Kagan’s assertion:

If employers were better off dropping insurance coverage and paying the “tax,” we would expect many large employers to do so. That has not happened—which confirms the common-sense conclusion that dropping insurance coverage is bad for employees and bad for business.

In any event, the speculation that Hobby Lobby could save money by dropping its employees’ health insurance plan, paying the tax, and making it up to them in increased salary disregards three important facts: (1) employer-provided health insurance is tax-exempt to the employee, but the compensatory increase in salary would not be; (2) the provision of insurance is tax-deductible to the employer, but payment of the tax is not; and (3) employer-based group coverage is cheaper and usually better than individual plans on the exchanges. It is almost certainly cheaper for Hobby Lobby to provide health insurance than to pay for its employees to purchase equivalent coverage on the exchanges.

True, some of Hobby Lobby’s employees might be eligible for subsidies, which in theory might lower its costs. But those subsidies depend on information an employer does not have – family size and income – and employers cannot pay different amounts to workers based on these factors. To make all of its employees whole, Hobby Lobby would have to assume none will receive subsidies.

In short, if Hobby Lobby drops insurance, it would not simply pay a $2,000 “tax.” Requiring it to cease providing insurance would cause massive disruption to Hobby Lobby’s employees, major uncertainty for its business, and cost millions of dollars in taxes and salaries beyond what it was previously paying just for insurance. It is easy to see how imposing such a choice constitutes a substantial burden—which is likely why the government never raised the issue, and the courts of appeals never considered it.

In fairness to Kagan, I will note that it’s conceivable that she was just posing “devil’s advocate” questions and that she didn’t actually embrace the propositions that she set forth. That’s certainly not how her remarks came across, though.

On the other hand, I will give Kagan credit for seeming to recognize the lack of merit in the Obama administration’s “threshold claim” that for-profit corporations operated in accordance with the religious beliefs of their owners have no religious-liberty rights at all. (See transcript at 51:9-13.)

Some Questions about RFRA from Hobby Lobby


During last week’s oral argument in Hobby Lobby v. Sebelius and Sebelius v. Conestoga Wood Specialties, Justice Kagan posed this odd question to Paul Clement (starting on page 13 of the transcript):

JUSTICE KAGAN:  But, again, Mr. Clement[,] as Justice Ginsburg said, [RFRA] was a very uncontroversial law.  Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard.  So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws.  And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

Here are several factors that make this a strange question.

First, the statute is unequivocal. The text of RFRA plainly states repeatedly that RFRA requires federal law to meet the “compelling interest” standard when it substantially burdens religious freedom. The government hasn’t questioned this interpretation. So why is Justice Kagan calling it “your understanding” or “your interpretation?”

Second, Justice Kagan’s question assumes that this is somehow controversial. But RFRA was passed in 1993 with only three “no” votes and was signed by President Bill Clinton, not exactly an arch-conservative. 

Third, there’s even a Supreme Court case that explicitly says that RFRA means what it says. Justice Kagan is doubtless aware of Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, a unanimous opinion applying RFRA to a religious exemption from narcotics laws. So why treat the challengers’ position as some bizarrely broad interpretation of RFRA when it’s just what the Court said RFRA means? 

Fourth, if anything, shouldn’t the fact that RFRA was uncontroversial mean that this is really an easy case, not a hard one? 

Should we interpret Justice Kagan’s questions as an indication that the left-wing of the Supreme Court is abandoning strong commitments to religious liberty as a first principle, or at least wants to abandon RFRA?


This Day in Liberal Judicial Activism—April 1


2013—The Supreme Court unanimously affirms a ruling by Ninth Circuit judge Stephen Reinhardt.

April Fool’s! Just kidding.

Instead, in a per curiam opinion (in Marshall v. Rodgers), the Supreme Court unanimously overturns a Ninth Circuit panel decision joined by Reinhardt and his lefty colleague William A. Fletcher (and authored by a visiting district judge). The Ninth Circuit panel had granted the claim by a habeas petitioner that the state of California had violated his Sixth Amendment right to effective assistance of counsel. But, explains the Supreme Court, the panel’s conclusion that the habeas claim was supported by “clearly established Federal law” rested on its “mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific rule that this Court has not announced.”

2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place. 

Judge Calabresi’s Flagrant Ethical Violation


Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.”* The official commentary to that canon further provides (emphasis added):

The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A.

The pending Supreme Court case of Town of Greece v. Galloway, which was argued in November, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.

Despite the fact that the case remains pending, Second Circuit judge Guido Calabresi, who wrote the opinion under review, has somehow seen fit to offer extensive public comments—in the form of an edited interview—about the case. Among other things, Calabresi seeks to defend his ruling (including by emphasizing the ideological diversity of the panel), says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”

Calabresi, a former Yale law school dean, has been on the Second Circuit since 1994. Surely he ought to be familiar with the basic provisions of the Code of Conduct by now. Yet what we have here is not an inadvertent remark, but an extensive interview, about a pending case.

Further, by his public advocacy for the Supreme Court to affirm his ruling—and thus to deliver a victory to the plaintiffs—it would seem that Calabresi has failed to live up to his duty to “take particular care” to avoid “denigrat[ing] public confidence in the judiciary’s integrity and impartiality” (and has thus also violated Canon 2A).

* In the interest of completeness, I’ll note that Canon 3A(6) also states: “The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.” I don’t see any plausible argument that his interview falls within any of these exceptions.

This Day in Liberal Judicial Activism—March 31


1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime. Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.) 

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.” Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.” Asks Frankfurter rhetorically: “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?” Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes. 

This Day in Liberal Judicial Activism—March 30


1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.” In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”. But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional. (See This Day entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

2001—After nearly six years in which his preliminary injunction has operated to prevent Indiana from implementing an informed-consent statute for abortion that is materially identical to the provisions that the Supreme Court held to be constitutionally permissible in 1992 in Planned Parenthood v. Casey, federal district judge David F. Hamilton enters a permanent injunction against the statute. In doing so, Hamilton rests heavily on a statistical study, conducted by a sociologist at the Alan Guttmacher Institute, that related entirely to the effects of a waiting-period provision in Mississippi. Never mind that the Seventh Circuit had already determined, in a 1999 case involving Wisconsin’s informed-consent law, that the Mississippi study should not be relied on. A Seventh Circuit panel (with abortion radical Diane Wood in dissent) later reverses Hamilton’s injunction.

In 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to a federal appellate seat.

This Day in Liberal Judicial Activism—March 29


2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections. Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general. So what? As Justice Scalia responds: “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”

The Next Debo Adegbile?


Politico is reporting that Democrats are engaged in an internal debate over whether to abandon the blue-slip practice for judicial nominees: 

Pressure is continuing to mount in President Barack Obama’s base — and within his own White House — to push for a new nuclear option for judicial nominees. . . . White House counsel Kathy Ruemmler and others in the administration are currently caught between their own exasperation and their wariness about a direct challenge to Judiciary Chairman Patrick Leahy (D-Vt.) — the one and only man who could peel away the next layer of Senate control over nominations.

One of the nominees mentioned in the story is Ronnie L. White, the former Missouri Supreme Court judge whose first nomination to the federal bench was rejected in 1999 amid controversy over his record in criminal cases. President Obama nominated him for the federal bench last November. 

It’s hard to imagine that vulnerable Democratic senators would be excited about a floor vote on White’s nomination. Just a few weeks ago, the Senate rejected the nomination of Debo Adegbile for a high-ranking position at the Department of Justice after law enforcement and victim groups brought attention to his prior work on behalf of convicted cop-killer Mumia Abu-Jamal.

If Adegbile’s background gave Democratic senators heartburn, then Ronnie White’s judicial record will induce outright panic.  

When Ronnie L. White served on the Missouri Supreme Court, he was a death penalty skeptic, consistently finding procedural reasons to overturn death sentences. For instance, in two cases, Judge White accused trial court judges of racism. In the first case, where the defendant brutally beat his wife to death with a pipe while her son slept upstairs, Judge White claimed that the judge had been biased even though he could point to no “obviously unfair” ruling at trial. In the second case, Judge White wrote a majority opinion accusing the judge of racism because he had used racially neutral language to describe a juror. Judge White also joined several dissents arguing that death sentences should be overturned. One of these dissents argued that the Missouri Supreme Court’s job in death penalty cases was to conduct its own independent review and evaluation of the evidence, ignore the jury’s verdict, and effectively act as “super juror.”  

In another death penalty case involving a quadruple-first-degree murder spree, Judge White wanted to overturn the verdict because the defendant’s lawyer did not interview two government witnesses who partially rebutted the defendant’s insanity defense. After Deputy Sheriff Les Roark of the Moniteau County Sheriff’s Department responded to a domestic disturbance call at the defendant’s residence, the defendant shot Deputy Roark twice with a .38 caliber pistol. When the defendant heard Deputy Roark moaning in pain, he fired again, this time shooting him in the forehead. The defendant then drove to the house of Sheriff Kenny Jones, where he opened fire at the Christmas party inside. He shot Sheriff Jones’s wife five times, including twice in the head. She died.

The defendant then went to the home of Deputy Sheriff Russell Borts, whom he shot four times through a window. (Borts survived.) Next, the defendant drove to the Sheriff’s office building, where law enforcement officers from multiple jurisdictions had gathered. As they exited the building to respond to Borts’s shooting, the defendant opened fire, shooting and killing Cooper County Sheriff Charles Smith with shots to the head, face, right side, and upper back. The defendant also gunned down Miller County Deputy Sandra Wilson, who had just arrived and was exiting her car, with a single shot to the heart. In the terse verbiage of the majority opinion, “Deputy Wilson died on the pavement.” The defendant escaped and, after taking an elderly woman hostage for most of the next day, surrendered. 

Calling this a “hard case,” Judge White wanted to overturn the verdict based on his judgment that the defendant’s attorney unprofessionally failed to interview two state police officers. The defense claimed that the defendant was insane due to Post-Traumatic Stress Disorder caused by the Vietnam War, arguing (based in part on a deposition of the defendant’s wife) that during an episode, the defendant set up a tin-can-and-rope alarm system because he believed that he was “fighting in a free-fire zone.” The prosecution rebutted this claim after opening statement (a highway patrolman had set up the alarm) and used it to attack the defense’s credibility in closing. Judge White voted to reverse even though he was “not necessarily convinced that the weakness of the case was not the ‘most likely’ reason the defense failed,” that is, he believed that the most likely reason for the conviction was the weakness of the defense case. The defendant had confessed to the shootings, repeatedly describing his victims as law enforcement officers (not Viet Cong) and blaming his motivations on disagreements with the Sheriff’s Office.

When Judge White’s nomination was put to a vote, the Senate rejected his nomination on the merits, 45–54. It seems doubtful that senators who just voted against Adegbile’s nomination earlier this month would then vote for White, whose record would be more troubling to victims and law enforcement groups.

Hobby Lobby—Separation of Powers


At oral argument in Hobby Lobby, Justice Kennedy posed an important rhetorical question concerning how separation-of-powers principles bear on the compelling-interest inquiry under RFRA:

What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?… But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes?

When Congress enacted Obamacare, it didn’t say a word about contraception. It merely said that non-grandfathered insurance plans should cover “preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration….” HRSA, a sub-agency of HHS, delegated this task to an outside body, the Institute of Medicine. The IOM issued a report recommending that the preventive services regulation include, among other things, all FDA-approved contraceptives, including those that can kill an embryo. This occurred outside the rigors of notice-and-comment rulemaking and was guided by a select group of “experts” that included many voices from the pro-abortion lobby. IOM released its report in July 2011, well after many employers, including Hobby Lobby and Conestoga, had already given up their grandfathered health plans. 

Within days of the IOM report, HHS issued an interim final rule mandating insurance coverage for all the items recommended in the report. Only after the interim rule was issued did HHS choose to begin the process of notice-and-comment rulemaking. 

HHS provided a narrow exemption for houses of worship. In response to an intense political outcry, it initiated another rulemaking that offered an “accommodation” for religious non-profits.  That rulemaking was accompanied by a series of shifting “safe harbor” provisions and multiple delays, a familiar refrain for those of us watching the incompetent Obamacare rollout. Several senators chronicled this pattern of executive lawlessness in an amicus brief.

The end result was a system that provides exemptions for churches, an inadequate accommodation for non-profit religious organizations, and nothing at all for for-profit employers like Hobby Lobby and Conestoga. HHS claimed the power to make a religious exemption, but a narrow religious exemption of its own choosing—not a broad religious exemption designed to comport with the Religious Freedom Restoration Act enacted by Congress. That’s a deeply troubling result not only for those who care about religious freedom, but for those who care about our constitutional separation of powers. 

The Solicitor General began his argument with a quote from Justice Jackson’s opinion in Prince v. Massachusetts. Perhaps the Obama administration would have been wise to remember Jackson’s warning from the Steel Seizure cases:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Michael McConnell on Hobby Lobby


On the Volokh Conspiracy, religion-law expert Michael McConnell has an excellent post that sets forth compelling no answers to these four important questions:

(1)  Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?

(2)  Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?

(3)  Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?

(4)  Has the government satisfied the least restrictive means test?

Hobby Lobby—The Real Parade of Horribles


Much of the government’s argument, and much of the hostile questioning of Hobby Lobby from the bench, has focused on the parade of horribles that would supposedly occur if Hobby Lobby wins. As I have explained, this parade of horribles has not occurred in the past (even though the government acknowledges that sole proprietorships and partnerships could raise religious exercise claims) and it would be prevented by RFRA’s compelling-interest test. In fact, Congress adopted the compelling-interest test precisely because Congress regarded it as “a workable test for striking sensible balances between religious liberty and competing prior government interests.” 42 USC § 2000bb(5).

Tuesday’s argument revealed a different, and genuine, parade of horribles that merits attention. Under questioning from Justice Kennedy, the Solicitor General was forced to admit that the Administration’s argument, if accepted, would mean that an abortion mandate could be imposed on for-profit corporations. Transcript 75-76. (I have made a similar observation.) Under the government’s argument, for-profit corporations have no religious-exercise rights at all (a claim that even Justices Breyer and Kagan seemed to take issue with). Thus, under the government’s theory, the only thing that protects such employers from being forced to pay for abortions is that the government hasn’t yet decided to mandate such coverage. (Indeed, under that same theory, incorporated ob-gyn practices could be required to perform abortions.)

(The concern about an abortion mandate is far from hypothetical. A pending Washington state bill would impose precisely this requirement. The bill has passed the state House and is awaiting action in the Senate, as discussed in this amicus brief from a Washington state business.)

The Solicitor General initially seemed to claim that while such a mandate could coerce profit-makers, it could not reach religious non-profits. Transcript 75-76. But in context it is clear that the Solicitor General meant merely that the Administration would agree that a religious non-profit would be allowed to bring a religious-exercise claim (i.e., would “have an ability to sue”). Under the government’s theory, the religious non-profit would always lose such a claim, because the religious non-profit would be “extinguishing statutorily-guaranteed health benefits of fundamental importance to those employees.” Transcript 82.

Imagine that the Administration issues a rule (or a future Congress passes a law) saying “Every woman has the right to an abortion from the health-care provider of her choice.” Under the government’s theory, all for-profit doctors’ offices and hospitals would lose at the threshold: they would not be permitted to raise any religious-exercise claims at all. As to a religious non-profit, the government’s position would be that a religious-exercise claim could be made but would always lose. That is because the crux of the government’s argument in Hobby Lobby is that a RFRA claim must fail where it would “extinguish a statutorily guaranteed right of a third party.” Transcript 82. If a non-profit Catholic hospital refuses to provide the statutorily-promised abortions, and makes a RFRA claim for protection, it would presumably lose because allowing the hospital to benefit from RFRA’s protection would allegedly impose burdens on third parties. According to the government, avoiding such third-party harms is automatically a compelling interest, so the religious claimant would lose.

That result cannot possibly be squared with RFRA’s plain text, or with its legislative history, which was quite consciously focused on such abortion-related mandates. Yet if the government gets its way at the Supreme Court, RFRA would provide no protection to anyone in that context.


Hobby Lobby—Straightforward Statutory Interpretation


Hobby Lobby has consistently emphasized that its case is one of simple statutory interpretation. It did so in the opening paragraphs of its brief to the Supreme Court—“[o]n the merits, this is one of the most straightforward violations of [RFRA] this Court is likely to see”—and in the opening lines of oral argument. And Justice Kennedy used his opening questions to press precisely this point. This statutory emphasis is important for a number of reasons.

First, it makes the Court’s job much easier. The RFRA questions before the Court are straightforward statutory issues, most of which are already answered by RFRA’s text, other statutes, or the Court’s recent unanimous precedent:

Are family businesses, such as Hobby Lobby, and their owners protected by RFRA? Yes—RFRA protects “persons,” and federal law says that includes both families and their businesses.

Is Hobby Lobby exercising religion? Yes—as Justice Sotomayor indicated, there could hardly be a better candidate than Hobby Lobby—with its religious music, Sunday closings, and evangelistic newspaper ads—for showing how closely held family businesses can exercise religion.

Is Hobby Lobby’s religious exercise sincere and not just a guise to save money at its employees’ expense? Yes—as Justice Kagan pointed out, Hobby Lobby stores “seem like very good employers,” and the government admitted both that it doesn’t question Hobby Lobby’s sincerity and, as Chief Justice Roberts noted, that there’s no financial advantage to Hobby Lobby here.

Is the government substantially burdening that sincere exercise of religion? Yes—compared to past cases, which found a substantial burden from comparatively minor punishment, the massive penalties and huge competitive disadvantages forced on Hobby Lobby are clearly substantial.

Has the government shown that it has a compelling interest in burdening Hobby Lobby’s exercise? No—the government failed to put any evidence in the record proving that it has a compelling interest in forcing Hobby Lobby (which already covers 16 other contraceptives) to pay for the 4 contraceptives that can take a human life, and it has exempted businesses that cover tens of millions of Americans from providing any contraceptives.

Has the government shown that forcing Hobby Lobby to provide coverage is the least restrictive means possible to accomplish its interests? No—the government has obvious alternatives to provide the objectionable drugs and devices to Hobby Lobby’s employees, such as its own insurance exchanges, its long-extant free contraception programs, and the accommodations it created to keep corporations with similar religious objections from having to pay for contraceptives.

In sum, the statutory analysis here is plain.

Second, we know that the parade of horribles trotted out by the government to deny Hobby Lobby’s RFRA rights includes exactly the ones relied on by the Court in Employment Division v. Smith. By enacting RFRA, Congress plainly regarded the parade of horribles as imaginary. So we know that, as a matter of simple statutory interpretation, RFRA’s reach shouldn’t be stunted by the government’s Chicken Little act.

Third, that this is a statutory interpretation case lowers the stakes considerably. In constitutional adjudication, the Court’s ruling would set a rule governing the nation that could only be reversed by the Court itself. Not so with statutes—what Congress hath given, Congress can take away. As Chief Justice Roberts pointed out, Congress can always either amend RFRA or amend the statutes covered by RFRA if it has policy concerns about how RFRA is operating in a given situation. Indeed, RFRA explicitly covers only those statutes that do not clearly declare themselves beyond RFRA’s governance. (Notably, the Affordable Care Act did not so declare.) In the implausible instance in which the sky starts falling, Congress can easily prevent the damage that the government fears.

(I’m blogging from the road, where it’s difficult to add in hyperlinks, so my apologies.)

This Day in Liberal Judicial Activism—March 27


1931—Stephen Reinhardt is born in New York. Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the “liberal badboy of the federal judiciary.” In his overtly political view of judging, “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”

Hobby Lobby Is an Abortion Case


Ian Millhiser, commenting at Think Progress on yesterday’s oral arguments in the Hobby Lobby case, is concerned that “Justice Kennedy Thinks Hobby Lobby Is an Abortion Case—That’s Bad News for Birth Control.”  Millhiser says Kennedy “views abortion as a grave moral wrong.”  I don’t know how one can so confidently say this of the joint author of 1992’s Planned Parenthood v. Casey.  (Millhiser notes that Kennedy has not cast a “pro-choice” vote since that ruling, but then again, the survival of Roe v. Wade as a precedent hasn’t been squarely before the Court in all that time, either.)

Here is the passage in yesterday’s oral argument that worries Millhiser:

Justice Kennedy:  Under your view, a [for-]profit corporation could be forced—in principle, there are some statutes on the books now which would prevent it, but—could be forced in principle to pay for abortions.

Solicitor General Verrilli:  No.  I think, as you said, the law now—the law now is to the contrary.

Kennedy:  But your reasoning 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 as though he had not spent his whole legal career since law school entertaining hypotheticals to test a principle!

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.

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, 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.

Millhiser objects to Roberts’s intervention, and insists (as Verrilli feebly did yesterday) that Hobby Lobby and Conestoga Wood are mistaken, citing a brief filed by some medical professionals that “explains” that no abortions are caused by any of the mandated drugs and devices.  That “explanation” rests on wordplay about “pregnancy” and “implantation.”  For the truth, see this brief instead.

Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case.  As I said to Bill Bennett this morning, yesterday’s arguments make me optimistic.  When Bill asked for a prediction, I took the bait, for better or worse: 5-4 victory, Roberts writing for the Court, Kennedy concurring, June 26.  You read it here first.


This Day in Liberal Judicial Activism—March 26


1997—After two decades of school-desegregation litigation in Jenkins v. Missouri, federal district judge Russell G. Clark issues his final order in the case. Clark’s desegregation plan for the Kansas City, Missouri, School District has been (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” As this report summarizes it, Clark has ordered the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results, however, have proven dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

2009—In an academic paper titled “Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees,” political scientists Richard L. Vining, Jr., Amy Steigerwalt, and Susan Navarro Smelcer present their statistical findings that “suggest the presence of some systematic bias towards Democratic nominees in the ABA’s ratings.” Among their findings: “In sum, when we isolate the effect of ideology, we find that, all else being equal, liberal nominees are more likely to receive the highest possible rating than their conservative counterparts.”

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 . . .


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