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March 28, 2014

Embarrassing: Jeffrey Toobin Falls to New Levels of Incompetent Hackery

The Hobby Lobby case is kind of a first amendment/religion clause case.

Kind of.

Because there is a law that provides actual statutory language to the vague provision in the Constitution -- the Religious Freedom Restoration Act, signed by Bill Clinton, which had been passed unanimously in the House, and which sailed through the Senate with the lopsided vote of 97-3.

Hobby Lobby's actual claims are made under the Religious Freedom Restoration Act, not the First Amendment. The First Amendment lurks in the background of the case -- the First Amendment is the reason for the RFRA, after all -- but the actual claims are made under the RFRA.

Does Jeffrey Toobin know about this law? Does he know it exists? Does he know that Hobby Lobby has made its claims based on the authority of the RFRA, not the First Amendment generally?

He appears to not know any of this, or, at the very least, he feels compelled to withhold this information from his readers. He writes with characteristic arrogance about the case, but fails to mention -- even once -- the law under which Hobby Lobby makes its claim.

Althouse calls this "deceptive."

I'm not convinced he's smart enough to qualify as deceptive. When a dog poops on your couch, that's not dishonest. That's just not knowing any better.

How can you write about the Hobby Lobby case without mentioning the Religious Freedom Restoration Act? It's blatantly, atrociously deceptive. Toobin proclaims that "The issue in the case is straightforward." Yeah, I guess it is when you don't bother to mention the statute the claim is based on. Toobin mentions the other statute, the Affordable Care Act itself, and he asserts that it "requires employers who provide health insurance to their employees to include coverage for contraception." Well, actually, no, it doesn't! Congress did not take the political heat of dealing with contraception (which includes some methods some people think are abortifacients). Congress avoided that static as it pushed through a law by the narrowest possible margin. It left it to HHS to make the regulations that are under consideration.

If you really want to be straightforward and you actually care about what the legislature has done, the Religious Freedom Restoration Act towers over the HHS regs. Congress took the political credit for RFRA. Our elected representatives preened over their enthusiasm for religious exemptions back then. Congress avoided political responsibility — as it barely passed the ACA — for the birth control provisions and Congress avoiding for cutting the ACA free from the RFRA regime of judicially recognized exemptions.

While Toobin's "analysis" is as vapid and superficial as anything Maureen Dowd ever wrote, he does manage to offer up a keen legal insight into Tuesday's oral arguments-- his opinion that the "three female justices" "rocked" it.

You know, my former take was that I was somewhat anti-elitist.

But here's my new take:

Elitism hasn't even been given a fair shot yet.

Because these people who currently occupy elite positions...? Are not elite.

Who knows what would happen if these thick-witted, ignorant chair-holder-downers were pushed aside in favor of someone who knew what the hell they were talking about.

There's actually an update to this story, which Althouse published yesterday. Today, Toobin's piece contains this new bit, which does mention the RFRA:

Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment. “It seems to me that it would be such a vast expansion of what Congress must—could have thought it was doing, in 1993, when it enacted R.F.R.A.—to say that for-profit corporations can make claims for religious exemptions to any laws of general application that they want to challenge,” he said, referring to a law on religious expression that Hobby Lobby had cited. But the Justices (even Kagan) didn’t seem to be buying that claim entirely, so he moved on to defending the rights of the women employees to health care.

The New Yorker now explains:


Due to an editing error, some words were omitted from one of Paul Verrilli’s quotes. They have been restored.

I presume these erroneously-omitted words concerned the RFRA.

Well okay.

For an analysis that does include the RFRA, and does not include any firm opinions on which female justices may or may not have "rocked" it in the oral arguments, see Volokh for an expert on the Religion clause.

The analysis is very thorough. Why, if I were Jeffrey Toobin, I might even say the writer "rocked" the legal analysis. Here's one small part of it:

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

Turning to strict scrutiny, the government’s main argument is that it has a compelling interest in protecting the “statutory rights” of third parties—namely, the right of Hobby Lobby’s employees to get cost-free contraception through Hobby Lobby’s insurance plan. Evaluating the strength of the government’s interests is often one of the most difficult inquiries in constitutional law. But in this case, the government has almost insuperable difficulties in making the case.

a. First and foremost, the government’s compelling interest argument suffers from a rather glaring problem: Congress did not impose the contraceptive mandate, but left it to HHS to decide what “preventive services” must be covered. If Congress really viewed contraceptive coverage as a compelling interest it would not have left it to the vagaries of the administrative process, which are subject to political change from administration to administration.

The interest is further undermined by HHS’s statutory authority to grant religious exemptions to whomever it chooses—which HHS itself understands to include authority to grant such exemptions to for-profit businesses. See 77 Fed. Reg. 16504 (March 21, 2012) (“The Departments seek comment on which religious organizations should be eligible for the accommodation and whether, as some religious stakeholders have suggested, for-profit religious employers with such objections should be considered as well.”). Genuinely compelling interests—that is, those that cannot tolerate religious exemptions—do not come with open-ended regulatory authority to create exceptions.

The government interest in employer-subsidized Plan B is so "compelling" that the government forgot to mention it in the law that supposedly requires it.

An executive agency created the "statutory" right to a subsidy. Somehow.



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posted by Ace at 05:50 PM

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