The Corner

What Hobby Lobby Shows about Obama’s Fundamental Abuse of Executive Power

This should have been an easy case, as Justice Alito’s straightforward analysis demonstrates. The logic is simple: 1. corporations are persons because Congress said so in the Dictionary Act; 2. Hobby Lobby’s right to religious freedom is violated, under the Religious Freedom Restoration Act, because the contraceptives requirement for mandatory insurance supplied by employers contravenes the owner’s sincere beliefs; 3. the government did not explore any less burdensome alternatives to the mandate. This is a straightforward vindication of Hobby Lobby’s rights under the laws of Congress, not the Constitution.

But more important, this case shows the extreme ideological ends pursued by the Obama administration through its legal powers, and so is of a piece with the Noel Canning recess appointments clause case of last Thursday. In both cases, the president pursued extreme arguments in court to advance an ideological agenda — today, it was to sweep religious minorities into Obamacare; on Thursday, to create a union-friendly NLRB.

In both cases, the policy preference of Democrats was broadly at work. Most employers who supply insurance under Obamacare will not have religious-freedom rights at stake. The NLRB and labor law already gives unions broad rights to organize. But in order to push its ideology to extremes, the administration had to pursue even the small number of religious-oriented small businesses to force them into the contraceptives mandate. To guarantee unions a 100 percent win rate, rather than say 75 percent win rate in the NLRB, Obama had to illegally appoint its officials.

To me, that is Obama’s fundamental abuse of presidential power. He is not broadly interpreting his powers to respond to emergencies or national-security challenges. He is relying on extreme interpretations of his powers to play small-ball politics and win for ideological supporters. It is not only a misuse of power, but it damages the institution of the presidency for times when it will really matter.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.


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