Category Archives: Courts

Government and Legislative “Intentions”

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Halbig v Sebelius is a case that opened last Tuesday in the DC District Court that challenges the legality of Obamacare subsidies, and through that the applicability of the Employer and Individual Mandates, in states that have ObamaMart—Federal health insurance exchanges—rather than state-run exchanges.

The case hinges on what the Obamacare law says vs what Government says it says and what Congress’ “intentions” were.  Leave aside for now then-Speaker Nancy Pelosi’s remark that it was necessary to pass the law to know what was in it along with the admissions of most Representatives and Senators that they had not even read the 900-page law before they voted on it; following is the argument:

Judge Paul Friedman asked how far, and where, he should go to look for more information about what Congress actually intended with Obamacare.  Plaintiffs—Halbig, et al. (et al. consists of three more private individuals and eight businesses scattered across six states that have ObamaMart running because those states declined to set up state-run exchanges)—said the place to go was the law itself: what does the law say, explicitly, in its text.

Government, on the other hand, says to see the text of the law, but also go further and divine Congress’ intentions when it passed the law.

Which brings me back to Pelosi’s remark and those admissions.  Congress didn’t know what was in the law when it passed it; that information didn’t become available until after it was passed.  Not knowing what was in the law when it was passed plainly means that Congress cannot have known its intentions for the law when it passed the law.  Government’s insistence on divining intentions in this case, then, demands a level of mind reading that’s beyond even the talents of a Federal District Judge.  Or those of appellate or Supreme Court judges, which is where this case will go, no matter Friedman’s ruling.

Yet the question matters a very great deal: are citizens in states that have ObamaMart rather than state-run exchanges eligible for premium subsidies, and from that do the Employer and Individual Mandates apply in those states?  The text of the law says that subsidies are available only for those who buy policies through the state exchanges.  Government argues that those phantom intentions were that the subsidies were to be available for policies purchased through ObamaMart, also.

This matters because subsidies in the 34 states where ObamaMart operates in lieu of state-run exchanges amount to hundreds of billions of dollars of Federal (deficit, debt-building) spending, and those Mandates represent hundreds of billions of dollars (albeit fewer hundreds than those subsidies) of individual and business spending by non-subsidized purchasers of Obamacare policies in order to defray somewhat the costs of those subsidies (and, a separate significance, to pay “insurance” sellers artificially inflated premiums in order to support those sellers’ artificially depressed premiums for subsidized and elderly buyers)

The Judiciary Gets Another One Right–Almost

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Brothers Gilardi, owners of Freshway Foods and Freshway Logistics in Sidney, OH, objected on religious grounds to being required by Obamacare to provide insurance coverage that includes coverage for “contraceptive methods, sterilization procedures,” and so on.  A lower court had sided with the government, but the DC Circuit ruled, muchly but not completely, in favor of the Gilardis.

The majority opinion, written by Judge Janice Rogers Brown, held that the birth control mandate

trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act[]

She also wrote that the contraceptive mandate forced the Gilardis into a

Hobson’s choice: they can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.

but then she applied this only to the Gilardis themselves.  That’s the almost part of the ruling.

Unfortunately, Brown held against the Gilardis as this applies to their businesses (the downside of her ruling):

While we decline the Freshway companies’ invitation to accept Townley’s ipse dixit that closely held corporations can vindicate the rights of their owners, we understand the impulse.  The free exercise protection—a core bulwark of freedom—should not be expunged by a label.  But for now, we have no basis for concluding a secular organization can exercise religion.

But this makes no sense.  If a corporation is person enough to freely engage in political speech (vis., Citizens United), how can it not be person enough to have a conscience from which to speak—and to act?

In a concurring dissent (because he agreed with the majority opinion as it applied to the Gilardis but disagreed with that opinion as it applied to the Gilardis’ businesses), Judge A Raymond Randolph wrote

Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma?  If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (atheists, for example) possess them?

More, what is free exercise, if it is not the exercise by entities and individuals not formally…blessed…by government as Official Religious Organizations?

Judge Harry T Edwards’ dissent is even harder to understand.  He wrote, in all seriousness, that legislative restrictions may trump religious exercise.  How does that work, exactly?  It sounds like he’s saying legislative restrictions trump the supreme Law of the Land.

Edwards went on, suggesting

Allowing religious exemptions to for-profit, secular corporations would undermine the universal coverage scheme: if the Gilardis’ companies were exempted from covering contraception, another corporation’s owners might just as well seek a religious exemption from covering certain preventative vaccines.  A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.

Well, yeah.  And?  The vaccines may be entirely sound medicine—indeed, contraception and sterilization are entirely sound medicine, for those whose religious beliefs permit such.  It seems, though, that Edwards has both misunderstood the Free Exercise Claus and rejected Chief Justice Howard Taft’s sound advice:

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant….

Edwards then wrote in all seriousness

The mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages….

That wasn’t the question, though.  The question was whether the employer should be required to violate its conscience by offering coverage that covers the contraceptives, not whether the employer should encourage employees to use them.

Then, in the very next sentence, he wrote

[T]he Gilardis remain free to express publicly their disapproval of contraceptive products.

This is just cynical.  I can think of no other reason for this claim in this context.  If a man publicly expresses his disapproval of a sin and then commits that sin, he’s still a sinner—and a hypocrite, even if pushed into sin by the Federal government.

The DC Circuit opinion can be found here.

A Thought on a Judicial Shutdown

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Somewhat moot, with a bill to reopen the government having been passed and signed into law Wednesday night, but the subject is useful in its own right.  During the shutdown, the courts were at a real risk of running out of funds and having to shut down.

Fed up with the shutdown and sequester budget cuts, judges are mounting a “work-in.”

More than two dozen federal courts have avoided furloughs by designating all of their staff essential….

Those two dozen include the Appellate Court of the 2nd Circuit.

As the WSJ‘s Law Blog asks, what are the ethics of this?  Legally, a judge who participates in this decision or its development must recuse himself from related cases—for instance, should a recalled furloughee, or a declared essential staff member, object and sue.

But what if all the Federal courts designated their entire staffs essential?  After all, the work of the courts must go on, and they’re at minimum staffing in the best of times.  To whom could that “work-in” staffer appeal for redress, should he feel the need for redress?

Even more important, it seems to me, though, are the ethics of allowing the courts to be shut down against the backdrop of the other two branches of the Federal government—of which the Judicial Branch is most definitely the equal—remaining fully open for business, if on slightly reduced staffing.

Moreover, if the Executive Branch is going to continue one of its central duties—enforcing the law—a fully functioning judiciary is an absolute necessity to adjudicate those enforcement actions.  The obligation to enforce and the enforcee’s right to a speedy trial are not subject to shutdown.

Affirmative Action, Again

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Michigan’s Proposition 2 is in front of the Supreme Court, with oral arguments having occurred last Tuesday.  Prop 2 is an amendment to Michigan’s constitution which the citizens of that state very solidly approved ‘way back in 2006, with 58% voting for it.  The amendment banned racial discrimination affirmative action in public education and in state employment and contracting.

Why is this even a question for the Supremes?  Because the 6th Circuit Court struck down the people’s voice on the odd pseudo-logic that banning racial preference was somehow harmful to minorities.  It would, as The Wall Street Journal put it, “bar a black student from seeking preferential admission to the University of Michigan while allowing applicants with alumni connections or other attributes to try to gain an edge.”

The 6th‘s argument is curious especially because the Michigan citizens’ amendment doesn’t discriminate on the basis of race; it bans exactly that.  Minorities can, for instance, go on about seeking special preferences based on family—just as anyone can at nearly any college or university in the country.  Minorities can go on about seeking special preferences for funding for sickle-cell anemia, which particularly afflicts blacks (oh, wait, there’s that disparate impact thing) or on and on.  No one can seek special preferences on the basis of race, though.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary attorney, George B Washington, says with no trace of irony,

We don’t believe in the colorblind Constitution.  We’re making what we think is a straightforward defense of the rights of black and Latino young people” to seek admissions preferences from university officials….

It doesn’t get any starker than this: eliminating discrimination on the basis of race is to discriminate on the basis of race because discrimination on the basis of race is a race right.

What should be a slam dunk in the Supreme Court, though, isn’t.  Justice Ruth Bader Ginsburg said the 14th Amendment had been applied to protect politically weak “minorities against hostile, disadvantageous legislation” imposed by the majority.  True enough: the 14th demands “equal protection of the laws” for all, regardless of race (or any other non-meritorious characteristic).  By banning racial preferences, the citizens of Michigan did exactly than, and so those good citizens protected Michigan’s politically weak “minorities against hostile, disadvantageous legislation.”  Ginsburg chooses not to see that, however.

Additionally, Justice Sonia Sotomayor had this:

It’s always wonderful for minorities that they finally get in, they finally have children, and now you’re going to do away [with] that preference for them.  It seems that the game post keeps changing every few years for minorities.

No.  The problem is the constant insistence on racial preference—on judgment not by the content of a man’s character, but by the color of his skin.  The so far denied change is to eliminate that pernicious discrimination.

Finally, many have argued that Prop 2 actually has hurt minorities: their enrollment in Michigan’s colleges and universities, has fallen since the amendment was adopted.  A look at actual facts presents a different picture, though.  The graph below, from the University of Michigan and The Wall Street Journal, illustrates.

Plainly, there has been no effect at all on one minority group (which has been carefully ignored throughout the pro-affirmative action types—no discrimination here, though).  Americans of Asian descent has been constant since 2000, six years before passage of the amendment.

Black enrollment has fallen off.  But that downward trend was well established long before passage; their enrollment has been dropping steadily since 2001.  Since passage, the drop-off has continued, unchanged.

Hispanic enrollment paints a somewhat different picture.  This group’s enrollment has been flat since passage, halting a slight downward trend from a 2002 peak.

At worst, the citizens’ amendment has had no effect on minority enrollment.

Again, I ask: why is this even a question for the Supremes?  Except that it’s necessary in order to reverse a racially ignorant ruling by the 6th.

School Choice

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The Arizona State Court of Appeals (a level junior only to the State’s Supreme Court), Division One, ruled on a suit against that state’s creation of an education savings account (officially, Empowerment Scholarship Account) for grades K-12.  The Arizona ESA is designed to provide state funds to help parents send their children to schools of the parents’ choice (and away from failing schools), which might have included church schools.  The state had been sued on that last basis—the potential for state funds to be used in a religious environment.

The Appeals Court, politely, waved the BS flag at the suit:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion.  Any aid to religious schools would be a result of the genuine and independent private choices of the parents.  The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs.  Parents are required only to educate their children in the areas of reading, grammar, mathematics, social studies, and science.

The ESA is neutral in all respects toward religion and directs aid to a broad class of individuals defined without reference to religion.  The ESA is a system of private choice that does not have the effect of advancing religion.  Where ESA funds are spent depends solely upon how parents choose to educate their children.  Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school.  They may also use the funds for educational therapies, tutoring services, online learning programs and other curricula, or even at a postsecondary institution.  We therefore concur with the trial court that the ESA does not violate the Religion Clause.

Attorney General Eric Holder might want to keep this in mind as he sues Louisiana over that State’s use of state funds to subsidize parent choice.  The Louisiana case isn’t about separate of church and state, but it is, as was the Arizona case, very much about parents’ choice of schools for their children.

“Parents are required only to educate their children in the areas of reading, grammar, mathematics, social studies, and science.”  They can’t do that much when their children are trapped in failed schools.  Holder needs to get out of the way; the only serious outcome of his winning his suit is to keep Louisiana’s children trapped in that state’s failed public schools and so trapped in poverty.

Failed education is the first, and most important, link in the cycle of poverty.  By functionally denying children an education, Holder will be making it extremely likely that his victims grow up into either of two adult cycles of poverty: poverty and crime, or poverty and government dependence.

 

h/t AEIdeas