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Posts Tagged ‘mandate’

The lead story this evening at TPM bears the headline “John Roberts May Have Tipped His Hand on ‘Obamacare’ Reasoning.” The gist is that the Chief Justice’s dismissal of the challengers’ contention that the insurance requirement and tax penalty in 26 U.S.C. 5000A are inseparable “may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.”

I disagree with this characterization. If anything, the government’s taxing power position looked weaker after today’s arguments than before.

In suggesting that Section 5000A is an integrated whole for purposes of evaluating the applicability of the Anti-Injunction Act, Chief Justice Roberts first described the suit as one to challenge penalties, not taxes, then said that the label makes no difference, and concluded by stating that it makes no sense to separate the punishment from the crime. To the extent such statements suggest a position on the taxing power, it goes against the federal government–particularly the language of punishment and crime. Here’s the interchange:

CHIEF JUSTICE ROBERTS: The whole point -­ the whole point of the suit is to prevent the collection
of penalties.

MR. KATSAS: Of taxes, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, prevent the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.

MR. KATSAS: It’s entirely separate, and let
me explain to you why.

CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And the answer is nothing, it seems very artificial to separate the punishment from the crime.

For balance, the TPM piece quotes challenger-lawyer Randy Barnett, and I think he has it exactly right: “The only thing I think Chief Justice Roberts was expressing resistance to was our argument that the mandate was separate from the penalty for purposes of the [Anti-Injunction Act]. . . . That is only one of the bases on which the AIA does not foreclose consideration on the merits. I don’t think he was signaling anything at all about the constitutionality of the mandate penalty, the subject of tomorrow’s argument. If he was, however, I expect to get a much better sense of that tomorrow so we won’t have to wait long to find out.”

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Today’s Richmond Times-Dispatch contains an op-ed that I authored about the availability of a claim under the Religious Freedom Restoration Act for religious organizations that object to the contraceptives mandate. The policy changes announced Friday are certainly a step in the right direction. But the RFRA litigation will continue.

The ending of the op-ed–written earlier in the week and quickly revised immediately after the President’s announcement on Friday afternoon–is more tentative than I now believe is warranted. I wrote: “Should legal action continue to be necessary — and it very well could as more details of the administration’s changed plan take shape — the federal courts remain open for the enforcement of Congress’ broad understanding of religious liberty against an unreliable executive branch.”

If Friday’s announcement is the Administration’s “final offer,” continued litigation will be necessary. The reason why is captured well in the following statement by a group of distinguished legal scholars:

The reason for the original bipartisan uproar was the administration’s  insistence that religious employers, be they institutions or individuals, provide insurance that  covered services they regard as gravely immoral and unjust. Under the new rule, the government  still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

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America Magazine has a post by law professor Doug Kmiec setting forth how President Obama can “confess error” in requiring Catholic organizations, and others morally opposed to contraception, to provide insurance coverage for that to which they are morally opposed. The statement that Kmiec would advise President Obama to deliver includes the following:

Recently we made a mistake. While the constitution doesn’t mandate religious exemptions from general laws, I believe we should accommodate as many beliefs as possible and to the greatest extent possible without jeopardizing the purpose of the law.

The focus on the Constitution alone is curious. The Religious Freedom Restoration Act, or RFRA, requires that federal laws and regulations adhere to something akin to the “belief” about accommodation that Kmiec would have President Obama articulate. The need to accommodate need not rest on anything as ephemeral as President Obama’s faltering beliefs about religious liberty. There’s a federal statute for that.

The RFRA claim should come as no surprise. It is the lead claim in the Belmont Abbey case brought by the Becket Fund. And as far as I can see, it’s not even a close question whether the HHS mandate runs afoul of the RFRA. Perhaps I haven’t been paying enough attention, but I’m surprised at how little press the RFRA violation has received. For example, the recent Los Angeles Times article by David Savage that explains why the contraceptive mandate could face difficulties if it ever reached the Supreme Court discussed First Amendment jurisprudence but not the RFRA.

(In writing up this blog post, I came across several posts (here, here, here, here, here, and here) by Ed Whelan at National Review Online’s Bench Memos explaining why the mandate violates the RFRA. I’d be grateful for pointers to any responses, for as mentioned, I do not see how this is a close question.)

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The trend regarding state mandates toward religious organizations is to offer a very narrow statutory exemption from these laws for a subset of such entities, mainly parishes, while requiring all other organizations—religious schools, charities, hospitals, universities—to bow to secular laws and requirements. The argument is that these activities are “secular” in nature, and that the churches engaged in them may not bring their religious beliefs to bear on these properly secular activities. There is a concerted effort on the part of Planned Parenthood, the ACLU, and some labor unions to eliminate Catholic ethical and religious control over Catholic hospitals, charities, nursing homes, and other facilities. If this effort is successful in bringing the courts to tell the Church which of its ministries are Catholic and which are not, then the Catholic Church (along with other religions) will be forbidden to respond to the Lord’s command to serve the poor, the sick, and the abandoned in his name. Such laws will not be held to violate the free exercise clause so long as they have no discriminatory purpose. In other words, consistent with the free exercise clause, the state could require hospitals to perform abortions so long as it imposed this requirement on all hospitals.

From Francis Cardinal George, God in Action: How Faith in God Can Address the Challenges of the World

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