Category Archives: regulation

“Free” Contraceptives and Abortions

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As the Supreme Court takes up the Patient Protection and Affordable Care Act this week, I want to talk a bit about a small aspect of that Act that’s also been in the news lately—the mandate to provide free birth control and pregnancy “correction” services.  I’ll have some ramblings on the PPACA itself in a nearby post.

The original Health and Human Services mandate was that employers would be required to provide contraception and abortion health insurance coverage at no additional cost to their employees.  After the hue and cry over this assault on religious freedom—too many faith-based employers exist—President Obama “compromised” by putting the mandate off onto these employers’ insurance companies.  Of course this ignores all those faith-based employers that self-insure, but enough is enough—the Progressives have accommodated, now it’s on the rest of us to compromise by sitting down and shutting up.

The Wall Street Journal, in a recent editorial, talked about the economic aspect of this adjusted mandate, focusing on the still free part of the services.  The WSJ asked

Insurers are banned from charging higher premiums for extra benefits, so out of what mists will the necessary dollars materialize?

Health and Human Services claims that

Actuaries and experts have found that coverage of contraceptives is at least cost neutral, and may save money, when taking into account all costs and benefits for the issuer.

These must be the same actuaries and experts that assured Congressman Henry Waxman (D, CA) that PPACA itself wouldn’t be raising the cost of health insurance, so how dare AT&T, et al., announce just such cost increases in their SEC filings?

On the other hand, goes the argument, faith-based employers can simply hire insurers to run benefits and then directly pay their workers’ bills.  In this way, religious organizations will pay for the contraception and abortion coverage with only a token middle man.   But this is just a cynical sophistry.  Whether paying directly or through a “token middle man,” these organizations are still being forced to pay for a violation of their teachings and their conscience.

And this brings me to a larger problem with this mandate, the reduction on individual freedom that it represents.  Ann Patchett, in another op-ed in The Wall Street Journal, argues with a straight face that

If you are a Catholic, as I am, and birth control is covered in the insurance plan of the Catholic institution that employs you, you still don’t have to use it.

This is certainly true.  But she ignores the critical aspect of this: “you,” woman or man, must still pay for it.  Even though it violates your conscience, your religious teaching, to do so.

She goes on, with a justification all too common among Progressives:

If you are galled by the idea of paying for the birth control of people you do not know, people who might be using it to have wanton sex, stop and make a list of all the other troubling ways your tax dollars are spent. Contraception will probably not make the top 10.

Thus, because others have done wrong, or in this case because there are already a lot of misuses of our tax dollars, it’s OK to commit this wrong.  There’s an interesting logic.  Furthermore, this bit of argument carefully elides the loss of choice: no longer can a woman or a man choose to buy, or not to buy, contraception or abortion.  Now we all must buy them.

Finally, the argument also carefully elides a larger loss of freedom: the freedom of religion and conscience.  Now men and women of faith must violate their religious teachings, their conscience—not of their own free will (and the Progressives have made much of their non sequitor that vast hordes of Catholic women use contraception and even (gasp!) get abortions), but from government fiat.  Government supplants conscience, Government supplants God.

The Regulation of America

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We’re becoming a severely regulated country, and it’s coming on the heels of President Obama’s promise to

find rules that put an unnecessary burden on businesses [and] fix them

which he made in his 2011 State of the Union address and which he committed to writing in his Executive Order 13563 the week prior, which requires all executive branch agencies to “identify and consider regulatory approaches that reduce burdens.”

This also is symptomatic of what’s wrong with our present administration.

This exchange between Congressman Corey Gardner (R, CO)  and EPA Assistant Administrator Mathy Stanislaus at a House Environment and the Economy Subcommittee hearing demonstrates just how seriously Obama and his agencies take his promises:

Corey: Is it standard procedure for an economic analysis to ignore the impact on jobs?

Stanislaus: Well, we didn’t do a direct analysis, again we sought—

Corey: So you did not do a direct economic analysis?

Stanislaus: Well we did do an economic analysis on [various areas]

Corey: But not a cost on jobs?

Stanislaus: Not directly.

The entire five minutes of the video consists of variations of this exchange wherein Corey kept trying to pin down Stanislaus on whether the EPA satisfies its statutory requirement to do a jobs impact analysis as part of its rules economic analysis and Stanislaus’ constant evasion and finally admission that the EPA does not.  The rules, as rules, are more important than working Americans, more important than their effects on our country.

As the Heritage Foundation points out, since January 2009, 106 new “major” regulations have been enacted, costing us $46 billion, plus almost $11 billion more in implementation costs: Obama has become the biggest regulator in American history.  Dodd-Frank has generated the most regulations, and with the CFPB, these are the least accountable.  The EPA, though, is enacting the most expensive, with just four rules costing us $4 billion per year.  And this is before the closure of gasoline refineries in the Northeast—which will force New York, for instance, to import expensive foreign gasoline to make up the shortfall—and electric power generating plants throughout the already economic and employment challenged rust belt—which will drive up power costs for those hard-pressed businesses and citizens.

On the financial side beyond Dodd-Frank, the government is reaching directly inside our businesses to dictate to them what they can and cannot do with their own business assets.  Illustrative of this is the Federal Reserve Bank’s decision to not allow Citibank to return capital to its owners through increased dividends and stock buy-backs.  The Fed said Citi couldn’t handle it.  The Fed said that, not the bank’s owners.  The bank’s owners said otherwise but were casually overruled.

There’s a rather naked conflict of interest here for a government as prone to expand our national debt as this one is.  As Alex Pollock, resident fellow at the American Enterprise Institute, and past president and CEO of the Federal Home Loan Bank of Chicago, points out:

…governments promote loans to governments. They have an obvious self-interest in promoting loans to themselves and to other governments they wish to help or influence.  Banks are extremely vulnerable to pressure from governments—the more regulated they are, the more vulnerable.  Employees of government bureaucracies have an incentive to encourage loans to their political employers—an inherent conflict of interest.

But never mind about petty conflicts of interest.  It’s this way because the Progressives don’t believe we’re able to take care of our own affairs.  Instead, we must be told what to do, have our courses of action limited—for our own good—by our Betters.  And for their political gain.

2nd Amendment and the Fifth Circuit

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The Wall Street Journal‘s Law Blog has a description of an egregious gun rights case.  It seems that, when Errol Houston was arrested in New Orleans in 2009 on drug and firearm charges, the police seized a properly registered gun that he had.  So far, so good—when the police arrest someone, they’re allowed to disarm him, too.  However, when the charges were dropped, the city refused to return his weapon to him.  He sued for the return, and amazingly, the district court found for the city.  Even more amazingly, the Fifth Circuit upheld the ruling, with this…logic…written by Judge Rhesa Hawkins Barksdale:

Just as some regulation of speech–e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.  The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms.”  Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod dissented.  In addition to pointing out the degree of legality of the majority opinion, violating as it does the Supreme Court’s prior rulings in similar cases (vis., District of Columbia v. Heller and McDonald v. City of Chicago), she also correctly explains the nature and meaning of the 2nd Amendment:

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable.  Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.  Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.  These examples should suffice to show the absurdity of courts recognizing categorical exceptions for each particular exercise of those rights.  In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a “second-class right.”

Judge Elrod is right that the accessibility of alternatives is irrelevant—those alternatives are not the item itself, and the item itself remains the legitimate property of the owner.

Both the majority and Judge Elrod miss a larger point, though: the “right of the people to keep and bear Arms” is, indeed, a property right, but it is a different and more fundamental kind that that alluded by Judge Barksdale and accepted by Judge Elrod.  This property is one flowing from the endowment imbued in us by our Creator, a property of our being.  As such, Judge Elrod is right, but she doesn’t go far enough.  It is the regulation of our endowed rights that is the exception, not the possession of this or that particular item in a realization of one or more of those rights.

A Risk to Federalism

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It always starts from the best of intentions.  The Senate is unhappy with the lack of uniformity of driving laws governing teenage drivers across the States, so it wants to impose national standards.  Specifically, the Senate wants to use a two-year, $109 billion highway bill currently under consideration as the, umm, vehicle for imposing national standards for teenager cell phone use while driving and for teenage driver licensing requirements, among others.  The thinking seems to be that the Feds got away with this concerning minimum drinking ages, so they can do it again in this area.

But the Feds didn’t, entirely, get away with it concerning drinking ages.  In South Dakota v. Dole, the case concerning the imposition of a national minimum drinking age, the Supreme Court ruled (not entirely correctly) that

[T]he relatively small financial inducement offered by Congress here – resulting from the State’s loss of only 5% of federal funds otherwise obtainable under certain highway grant programs – is not so coercive as to pass the point at which pressure turns into compulsion.

Thus, to comply with the Court’s ruling, the Senate’s use of the spending bill—or any other means—to obtain State acquiescence with the Feds’ national standard must be done carefully.

I claimed above that the Court got Dole only partially right.  Under the Federalism structure of our nation, the Federal government cannot (not just may not) force the States, individually or as a group, to do very much at all.  This is clear from Article I, Section 8; Article I, Section 10 [sic]; and the 9th and 10th Amendments.  Mandating national standards for matters that are internal to the States (vis., the rules by which a State’s citizens might drink, or drive, or etc. within that State) is prohibited by our Constitution.  The Court plainly understood this with its Dole ruling.

However.

The Court’s understanding falls short, as demonstrated by that phrase pass the point at which pressure turns into compulsion.  It waffled on where to draw that line.  It had to waffle, because that line cannot be drawn.  It is the nature and purpose of “pressure” to get the target of the pressure to comply.  The first iota of pressure has as much compulsory content as the last iota that pushes to total over that line to a compulsion that even a Supreme Court can recognize.

The President can use his bully pulpit quite legitimately—and Presidents often do, beginning with Teddy Roosevelt—to jawbone with his target audience to get this or that issue handled “his way.”  So can the Senate, or the House, or the Congress as a whole.  There is, though, a not very fine line between remonstrating, on the one hand, and forcing (or “pressuring” for) compliance—compulsion—on the other.  Putting such jawboning into legislation goes far beyond mere argument and becomes an attempt at compulsion, albeit with a cotton glove.

The greater risk is not to our teenagers, or fellow travellers, from their driving habits, but to the Federal nature of our nation from a central government imposing uniformity on things that properly are within the…province…of our States.  That greater risk includes the risk to our teenagers’ welfare.

On the other hand, this might be a fine opportunity for the States to set a powerful precedent.   This might be the place for the States to start saying, “Done and done.  Keep your Federal highway dollars.  We no longer wish to have your Federal hands in our State pockets.”

Voter Rights

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The Obama administration, through the Holder Justice Department, has blocked another voter photo ID law, this time in Texas.  Thomas Perez, DoJ’s Assistant Attorney General for the Civil Rights Division, insists

According to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.

Even using the data most favorable to the state…that disparity is statistically significant[.]

Perez also noted that the Texas law allowed voters to show military ID, a US citizenship certificate, a US passport, or a license to carry a concealed handgun, but the state did not provide any statistics noting how many people lack state ID but have the other allowable forms.

I cannot conclude that the state [of Texas] has sustained its burden [of showing law has neither a discriminatory purpose nor effect]

This is echoed by Luis Figueroa, a staff attorney with the Mexican American Legal Defense and Educational Fund:

The photo ID law would disproportionately affect poor and minority voters, who are least likely to have any of the required forms of identification or the documentation needed to obtain one[.]  It also would hurt students because college or university IDs would not be accepted[.]

Hmm….  So, on the basis of speculation that nefarious ends might occur at some time in the future—a speculation that Texas failed to disprove—and on the baldly asserted but wholly unsubstantiated claim of inconveniences, Texas’ voters’ ballot choices will continue to be exposed to invalidation through the voter fraud that a photo ID law would have greatly mitigated.

Moreover, what Perez apparently chose to ignore, is the ease with which a voter photo ID is, in fact, obtainable—and how many groups (vis., disabled, elderly) are exempted from the requirement.  And the consequences of showing up at the polling station without such an ID: voters who arrive without one of seven acceptable forms of photo IDs issued by the state or federal government would be given a provisional ballot.  That ballot would count if the voter then brings an approved ID to the registrar’s office within six days of the election—including an ID obtained after casting the ballot.

Congressman Lamar Smith (R, TX), House Judiciary Committee Chairman, has the right of it:

Voter ID laws help ensure the integrity of our elections and protect the rights of lawful voters.  If citizens are required to show ID in order to open a bank account, cash a check, drive a car or board a plane, how much more important is it to show ID in order to exercise one of our most valuable democratic rights?  This is an abuse of executive authority and an affront to the citizens of Texas.

Smith also noted that the Texas law to which Obama and Holder object was based on an Indiana law that has been upheld by the Supreme Court.

Finally, recall that this is the same Progressive administration that withdrew from two cases of voter intimidation—after confessions and guilty pleas had been obtained.  It’s clear that this is an administration that condones voter fraud, that wants votes diluted by illegal voters.