This morning, Politico made me laugh, opening an article about the Trump administration’s department of Health and Human Services with this incredibly misleading paragraph:
A small cadre of politically prominent evangelicals inside the Department of Health and Human Services have spent months quietly planning how to weaken federal protections for abortion and transgender care — a strategy that’s taking shape in a series of policy moves that took even their own staff by surprise.
The reality is that the Trump HHS has issued a notice of a proposed rule (essentially, a draft regulation for public review and comment) that will empower the agency to robustly enforce multiple statutes passed by Congress and signed by presidents from both parties — statutes that the Obama administration had unlawfully and unilaterally revised or undermined.
In other words, the Trump administration intends to enforce the law as written, creating a Conscience and Religious Freedom Division within the civil-rights office of HHS. The only scandal here is the enduring (mainly progressive) idea that the executive branch can or should possess the authority to ignore or change laws passed by Congress. The religion of the Trump officials is irrelevant. Only their actions matter.
The background is simple. For many, many years Congress has included within various statutes a series of conscience protections for health-care providers who work at federally funded health-care facilities. These conscience protections mainly prohibit doctors and nurses from being forced to participate in abortions, sterilizations, and assisted suicides. They’re found in the so-called Church Amendments, the Coates–Snow Amendment, the Weldon Amendment, the Affordable Care Act, and multiple other pieces of the United States Code. They have been passed by Democrat- and Republican-controlled Congresses, and signed by Democratic and Republican presidents. It would be difficult for the American people to speak more clearly through their elected representatives.
In a nation that still functioned according to its constitutional design, the executive branch would be obligated to robustly enforce these laws. Instead, ideological bureaucrats have all too often taken the view that enforcement is optional. Sometimes these same bureaucrats will take it upon themselves to functionally rewrite the statutes.
The Obama HHS, for example, both dragged its feet on enforcement and passed regulations that actually undermined the intent of the law as written by Congress. In fact, it issued a rule that quite literally changed a statute. Section 1557 of the Affordable Care Act prohibits discrimination on the basis of “race, color, national origin, sex, age, or disability” in federally funded health programs, HHS health programs, and “Health Insurance Marketplaces.” In its regulations, however, Obama’s HHS unilaterally expanded the nondiscrimination categories to include “gender identity” and “termination of pregnancy.”
Thus, the Obama administration on its own created a rule that would require, for example, surgeons to amputate healthy organs as part of a gender “transition.” It undermined statutory conscience protections for Christian doctors under the guise of preventing “discrimination” against women seeking an abortion. It created a minefield of potential conflicts between its regulation and multiple federal statutes.
On December 31, 2016, a federal judge enjoined enforcement of the Obama administration’s rule on the basis that it “contradict[ed] existing law” and “likely violate[d] the Religious Freedom Restoration Act.” As of today this injunction is still in force. If anyone actually “weakened” Obama-era “protections for abortion and transgender care,” it was a federal judge interpreting federal statutes, not the “prominent evangelicals” at Trump’s HHS.
Oddly enough, you can read the entire Politico article and not find a single reference to this court opinion. Nor do you find any serious discussion of HHS’s statutory obligation to protect rights of conscience regarding abortion, sterilization, and assisted suicide. Instead, you’ll find a lengthy discussion of the religious beliefs and backgrounds of various Trump administration HHS officials. You’ll find critics’ claims that HHS is “blurring the lines between church and state.”
The attacks on the Trump HHS are but a symptom of a larger disease: the abuse and rejection of the constitutional order for the sake of ‘social justice.’
The attacks on the Trump HHS are but a symptom of a larger disease: the abuse and rejection of the constitutional order for the sake of “social justice.” The Obama administration perfected this art, justifying a series of unilateral actions with the claim that it was “forced to act” because Congress was “broken.”
Examples are legion. Congress didn’t pass the Employment Nondiscrimination Act, so the Obama administration re-interpreted existing federal nondiscrimination statutes to include prohibitions against discrimination on the basis of sexual orientation and gender identity. Congress didn’t rewrite the nation’s drug laws, so the Obama administration issued a series of memoranda that dramatically slowed down enforcement of statutes prohibiting the cultivation, sale, and use of marijuana. Congress didn’t alter the due-process rights of college students, so the Obama administration issued a “letter” that transformed the legal landscape on campuses from coast to coast. Congress didn’t reform the nation’s immigration laws, so the Obama administration implemented DAPA and DACA, two programs that together potentially impacted millions of illegal immigrants.
In fact, this weekend’s government shutdown was a result of Obama’s unlawful DACA program. The Trump administration rightly terminated the program, which didn’t even pretend to go through Congress or any sort of rulemaking process. If Trump let such a flagrant violation of the Constitution stand, there would be no shutdown. It’s that simple.
According to the modern progressive political project, any branch of government can make law. Yes, Congress can pass statutes, but Congress is controlled by Republicans, so it’s “broken.” If Congress doesn’t pass a statute, then the president can simply re-interpret existing laws or exercise “prosecutorial discretion” to create entirely new legal protections or government programs. If a later GOP president attempts to restore actual statutory standards, then he’s — to borrow Politico’s phrase — “weakening federal protections” for favored identity groups.
Then, of course, the courts exist as a backstop, even to the point of telling President Trump that one president’s memorandum binds the presidencies that follow — if, that is, the judge in his infinite wisdom believes that the next president is “arbitrary” or “capricious.”
The subversion of the fundamental constitutional structure of our government is an extraordinarily consequential matter — far more consequential than the fact that there are now a bunch of icky Christians in HHS who are — gasp — enforcing a series of federal statutes passed by both parties. Read the rule proposed by Trump’s HHS. It is fundamentally and essentially a recitation of the department’s clear statutory mandate to protect rights of conscience. Progressives who have a problem with these protections need to take their case to Congress, not slime Christians for enforcing the law.