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November 26, 2013

Supreme Court Will Take Up Religious-Freedom Challenge to Obamacare's Contraceptive Mandate


There are four cases the Supreme Court will review. In two cases, including the Hobby Lobby challenge, a court found for the plaintiffs; in the other two, courts ruled, get this, that the federal government has the power, and here I quote directly from the decisions, "to do like, whatever, man."

As there's a split in how the Courts of Appeal have ruled, it requires the Supreme Court to harmonize the decisions.

Arguments probably would take place in late March with a decision expected in late June.

The key issue is whether profit-making corporations can assert religious beliefs under the 1993 Religious Freedom Restoration Act...

The administration wants the court to hear its appeal of the Denver-based federal appeals court ruling in favor of Hobby Lobby, an Oklahoma City-based arts and crafts chain that calls itself a "biblically founded business" and is closed on Sundays....

The 10th U.S. Circuit Court of Appeals said corporations can be protected by the 1993 law in the same manner as individuals, and "that the contraceptive-coverage requirement substantially burdens Hobby Lobby and Mardel's rights under" the law.

In its Supreme Court brief, the administration said the appeals court ruling was wrong and, if allowed to stand would make the law "a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws."

In two other cases, courts ruled for the administration.

The Administration seems to define a conscience exception for the religiously-observant as a "sword."

All this stuff is about birth control, something that can be had for $100 per year, or less, of course. So the question is not about money or denying "benefits;" the benefits, tangibly speaking, are trivial.

It's about coercing one culture -- a traditionalist, religious one -- to accept the dominance of another culture -- "progressive," secularist.

Drew points out in an email that the instant case does not provide much opportunity to scale back Obamacare very much at all. At most, it seems, the Supreme Court would write a conscience exception into the law.

I have a wonderful fantasy, though. I've mentioned this fantasy before: The fantasy that the Supreme Court, looking at the wreckage of Obamacare, will seize upon an excuse to revisit the last Obamacare ruling. Not explicitly, mind you, but revisit it nonetheless.

My fantasy is that they are looking for any plausible contrivance by which to invalidate the law.

Gabe will say I'm a dreamer, but I'm not the only one.

What would that contrivance look like? All I can imagine is something like this (and I do realize this is a stretch):

The law of Obamacare is incomplete and offensive to the Constitution in that it requires, according to Obama, constant modifications by unilateral executive action. The law, then, is not really a law, but, as Charles C.W. Cooke termed it, an "Enabling Act" that effectively delegates an enormous amount of legislative power to the executive -- which is forbidden. Minor things can be delegated to the executive (the Court has blessed the regulatory state, in which Congress passes laws, but the executive writes the actual regulations giving specificity to those commands and forbiddances), but this limited blessing of an already constitutionally-shaky state of affairs cannot be stretched and extended infinitely.

It cannot be extended to an executive power to rewrite the explicit text of the law.

So that's my fantasy-- that the Supreme Court will use this challenge to begin asking if Obamacare is actually a "law" or an impermissible "enabling act" which serves to transfer an unconstitutional amount of legislative power from Congress to the President.

How would they do that? Well, they wouldn't even have to strike the law down. They could say: The Administration and Congress have until January 1, 2015 to cover all these questions by actual law (that is, they have until that date to rewrite Obamacare such that it conforms to the standards of an actual law) or else the law will be stricken.

I do know this is a fantasy. I know Gabe is right when he says (or will say) I'm a dreamer. And I think it's sort of irresponsible to suggest fantasy as analysis.

However: I do think the Supreme Court -- especially John "It's a Tax" Roberts -- is feeling some buyer's remorse. And the Supreme Court is, get this, a political institution.

If Roberts blessed Obamacare to make the Court popular (which was one of his reasons, Jan Crawford reported: to preserve the popularity and authority of hte court), then towards what outcome would that motivation lead him now?

Oh Right: dananjcon writes:

Remember, ACA has no severability clause. If anything is unconstitutional, they 'may' strike the entire act.

I forgot.

Corrected: Gabe tells me there are four cases that need to be harmonized here, and they split 2 for plaintiffs, 2 for government. I have corrected (I had written there were three cases, 1 found in favor of plaintiffs, 2 in favor of government).


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posted by Ace at 12:11 PM

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