In the wake of the Roberts Court's latest attack on the constitutionality of race-conscious law, right-wing media are mischaracterizing the decision and Justice Sonia Sotomayor's dissent in a dishonest attempt to frame civil rights precedent as "racial discrimination."
On April 22, the Supreme Court ruled in Schuette v. BAMN, a badly split opinion in which the Court's five conservatives rejected long-established equal protection law under the Fourteenth Amendment to uphold Michigan's voter-approved ban on affirmative action. Right-wing media immediately began misinforming about the case, ignoring the serious consequences it could have for minority rights in the United States. By effectively overruling the "political process" doctrine, which forbids setting up a separate and unequal tier of political participation for a disfavored minority, the conservative justices reopened the door to the rigging of political systems, previously disallowed because of its negative impact on communities of color.
NRO continued its misinformation campaign about Schuette in its April 22 editorial, claiming that affirmative action is itself a form of prohibited racial discrimination. The editorial went on to call Sotomayor's dissent in Schuette "legally illiterate and logically indefensible" and "offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law." To bolster the claim that Sotomayor is preoccupied by "ethnic-identity politics," the editors whistled to the 2009 right-wing media smears that the justice was a racist because she once referred to herself as a "wise Latina." From the NRO editorial:
In a perfectly Orwellian dissenting opinion, which she read dramatically from the bench, Justice Sotomayor argued that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination and that the only way to mitigate such racial discrimination is through the mandatory maintenance of racial discrimination. In this opinion she was joined by Justice Ginsburg, with Justice Kagan recusing herself from the case. Justice Sotomayor argued that Michigan's Proposal 2, which mandates race-neutral state policies, is the sort of legislation used to "oppress minority groups." By outlawing racial discrimination, she argued, "a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities."
Justice Sotomayor is here arguing in effect that if a constitutional referendum doesn't go the NAACP's way, then its effects are invalid. This is not an exaggeration: Justice Soyomayor argues explicitly that Michigan's voters would have been within their rights to, for example, lobby university authorities to adopt race-neutral admissions standards but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they "changed the rules in the middle of the game." Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described "wise Latina" on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.
Right-wing media are continuing to misinform about Schuette v. BAMN, the latest Supreme Court rejection of well-established civil rights law.
On April 22, in a splintered decision, the conservative justices of the Supreme Court effectively overturned decades of civil rights precedent and gutted a core component of equal protection law by reinterpreting the political process doctrine of the Fourteenth Amendment. This doctrine, based on Supreme Court cases from the civil rights era, prohibits restructurings of political systems to the specific detriment of a disfavored minority. The U.S. Court of Appeals for the Sixth Circuit found that the state of Michigan's 2006 ban on affirmative action violated this case law by removing this policy decision from the normal political system and writing it into the state constitution.
Contrary to right-wing media's framing of the case, Schuette was never about the propriety of affirmative action, although Michigan's ban has led to decreased minority enrollment and heightened racial tensions on campus. And as Justice Anthony Kennedy's controlling opinion in Schuette reaffirmed, race-conscious admissions policies in higher education remain constitutional. Still, Roger Clegg at National Review Online nevertheless called the case and its deleterious ramifications for the diversity of all future classrooms and students of color in particular "a big loss for racial preferences in the Supreme Court" and "a resounding win for the good guys."
Fox News' senior judicial analyst Judge Andrew Napolitano took it even further, saying that "the elites who run university systems think they know better than the voters do." When host Eric Shawn asked Napolitano about the precipitous drop in minority enrollment on Michigan campuses since the ban went into effect, Napolitano brushed him off, stating the Schuette decision "lets the voters go either way." He went on to claim that race-conscious admissions were antithetical to "that thing the Civil War was supposed to have resolved":
On April 21, Attorney General Eric Holder announced that President Obama plans to use his constitutionally-granted pardon power for certain eligible nonviolent drug offenders serving excessive sentences, a systemic approach to clemency that was most recently used by former Republican President Gerald Ford. In response, Fox immediately turned to right-wing media guests to push the false idea that this proposal is unconstitutional and unprecedented.
Before President Obama signed the Fair Sentencing Act of 2010, defendants convicted of selling or using crack received sentences nearly 100 times more severe than those convicted of selling or possessing cocaine -- despite the fact that the drugs are essentially the same thing. Those convicted and punished under the disparate sentencing guidelines were disproportionately black. The Obama administration's decision to use the pardoning power to commute unduly harsh sentences would, according to Attorney General Holder, apply to those offenders who were sentenced under the "old regime."
This proposal would not overturn their convictions, but would shorten their now-outdated sentences.
Fox Business host Lou Dobbs reported on the clemency proposal by asserting the attorney general's explanation for the need to ameliorate systematic discrimination was one of Holder's "fictions" and was "ludicrous" because the Civil War already eliminated slavery. Dobbs also hosted right-wing media figures to accuse the president of "gutting the Constitution and separation of powers doctrine at the same time." Fox News' Special Report pushed a similar narrative, with correspondent Mike Emanuel uncritically repeating a former Bush II official's claim that "this is yet another example of Obama going around lawmakers" before misleadingly claiming "Orrin Hatch said Congress, not the president, has the authority to make sentencing policy. Hatch called on Mr. Obama to work with Congress, rather than, once again, going it alone."
Fox News' Megyn Kelly also took exception to the Obama administration's proposal, hosting NRO contributor Andrew McCarthy on The Kelly File to rail against the announcement. Kelly, upset that "convicted -- convicted" drug offenders might finally have their sentences commuted, characterized the proposal as executive overreach on the part of the Obama administration. McCarthy agreed with Kelly and claimed that Obama's use of the pardon power was a "massive abuse" and tantamount to "rewriting the federal narcotics laws which he personally thinks are too severe."
In response to a New York Times report about General Mills' new anti-consumer legal terms connected to its website privacy policies, Forbes came to the defense of the large corporation and its recent attempt to immunize itself from class action lawsuits.
On April 16, The New York Times reported that General Mills had changed its legal terms to include burdensome forced arbitration clauses, contract provisions that force consumers to waive their right to sue or join a class action. In the aftermath of the high-profile publicity and condemnation from consumer advocacy groups, General Mills abandoned the change after complaining their short-lived class action bans were "mischaracterized."
Forced arbitration clauses have become increasingly popular in the wake of Supreme Court decisions upholding the legality of such clauses. Unsurprisingly, forced arbitration is beloved by right-wing media and corporations alike, because they make it exceedingly difficult for injured consumers to join together in a class action.
However, General Mills' forced arbitration agreement was particularly outrageous. According to the Times, the new terms could be interpreted to bind consumers by merely downloading coupons, interacting with the company's website through social media like Facebook, or by entering a sweepstakes or contest, even if they were unaware that they had supposedly relinquished their right to sue.
In a recent column in Forbes, columnist Daniel Fisher responded to the Times by minimizing the importance of class actions as a method of recovery for injured consumers, and hyped forced arbitration clauses as an adequate alternative. Fisher went on to mock the Times for flawed reporting before relying on right-wing talking points about forced arbitration:
The bigger issue is what the Times writers work so strenuously to keep out of their stories. The fight here isn't over individual lawsuits; it's over class actions, those cases that reward lawyers with millions of dollars in cash fees and give their clients little to nothing. In editorials and articles like this, the Times carries water for the class-action bar, which also happens to supply a significant amount of money to the Democratic Party each year. The paper conflates the individual right to sue with the right of lawyers to assemble huge groups of consumers, typically without their knowledge or participation, into zombie armies that can compel companies into settling on lucrative terms.
What do General Mills customers really give up if they agree to an arbitration clause?
[A]rbitration does offer some advantages over traditional litigation. Such as: No lawyer would ever take a small case against General Mills in the first place. The General Mills policy specifies a $200 filing fee, which the company waives in cases involving less than $5,000. And anybody who really wants to preserve his right of jury trial can opt out of the policy entirely by notifying General Mills in writing.
The Wall Street Journal is misleadingly defending a highly controversial and recently abandoned surveillance program that targeted innocent American Muslims.
Earlier this week, New York City Mayor Bill de Blasio announced the city planned to dismantle the constitutionally-questionable "Demographics Unit" of the New York Police Department (NYPD), a secretive program that relied on blanket surveillance and racial profiling of Muslim American communities both within and without the city. The program's indiscriminate spying on innocent Muslims on the basis of ethnicity and religion raised red flags not only among civil liberties advocates, but also among counter-terrorism experts. As The New York Times explained, the FBI was so alarmed about this CIA-initiated program that "F.B.I. lawyers in New York determined years ago that agents could not receive documents from the Demographics Unit without violating federal rules." The top FBI official in New Jersey, where the Demographics Unit conducted "surveillance of mosques and Islamic student organizations," pointed out that this widespread "police surveillance had made Muslims more distrustful of law enforcement and made it harder to fight terrorism."
Nevertheless, the WSJ editorial board was quick to defend these newly discontinued tactics.
In an April 17 editorial, the WSJ praised the former surveillance unit, calling the program "strikingly successful." The editorial went on to lament de Blasio's decision to scrap the program as "a bow to political correctness."
This is being hailed by the usual suspects as a triumph for civil liberties, but it's really a bow to political correctness that removes an important defense for a city that has stopped at least 16 terror plots since 9/11. It's also more fallout from a series of sensationalist Associated Press stories from 2011 that were riddled with distortions and have since been rebuked by a federal judge.
The result [of the surveillance program] was a strikingly successful effort, under former police commissioner Ray Kelly, to keep all New Yorkers safe. Part of that effort involved a small "Demographics Unit" (later renamed the "Zone Assessment Unit") to keep an eye on "hot spots" and "venues of radicalization," including mosques, bookstores, barbershops and other public places. The point wasn't to spy on entire communities, which the unit -- with never more than 16 officers -- lacked the resources to do in any case. It was to keep an eye on places where terrorists would seek to blend in.
Also false is the claim that the unit was ineffective. "The Demographics Unit was critical in identifying the Islamic Books and Tapes bookstore in Brooklyn as a venue for radicalization," Mitchell Silber, a former NYPD director of intelligence analysis, noted in Commentary magazine. "Information the unit collected about the store provided a predicate for an investigation that thwarted a 2004 plot against the Herald Square subway station."
Now that the 2014 midterm elections are just around the corner, right-wing media are dragging out some of their favorite attacks on voting rights, despite the fact that these myths have been thoroughly debunked.
National Review Online is marking the 50th anniversary of the Civil Rights Act by calling on Congress to abolish its protections against racial discrimination.
On April 10, President Obama spoke at the Lyndon B. Johnson Presidential Library to honor the former president's work to pass and sign the Civil Rights Act of 1964, legislation that Obama explained was "as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights." He added, "that's why I'm standing here today -- because of those efforts, because of that legacy," before warning that "history travels not only forwards; history can travel backwards, history can travel sideways. And securing the gains this country has made requires the vigilance of its citizens."
Instead of joining the president and the rest of America in celebrating this historic law that sought to push back against institutional discrimination and guard against future equal protection violations, an April 15 NRO column by Roger Clegg, Hans von Spakovsky, and Elizabeth Slattery called for Congress to gut key provisions of the Civil Rights Act, as well as the Voting Rights Act of 1965. Their proposal is rooted in the fact that these laws -- in recognition of the fact that racial discrimination in this country has been practiced against those who are not white for centuries -- are explicitly race-conscious and have "been expanded, however, through agency interpretation and activist court rulings to include 'disparate impact.'"
Rather than embrace decades of federal law, these NRO contributors instead prefer an ahistorical and so-called colorblind approach, where "provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin." From the authors' opposition to fifty years of civil rights precedent on behalf of historical victims of racial discrimination:
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
The "disparate impact" approach to civil-rights enforcement results in race-based preferential treatment -- often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
One of right-wing media's favorite myths about class action lawsuits -- their supposedly frivolous nature -- is now permeating respectable news sources.
On March 5, the Supreme Court heard oral arguments in Halliburton v. Erica P. John Fund, a case about securities class actions in which the conservative justices could make it practically impossible for average shareholders to effectively sue large corporations who distort the company's stock price through fraud. Plaintiffs in these lawsuits -- increasingly institutional investors like large pension funds -- have traditionally been able to join together as a class action to even the odds against these deep-pocketed corporate defendants.
Right-wing media have steadily pushed the myth that these types of equalizing lawsuits are ineffective or frivolous. For example, The Wall Street Journal editorial board has long stoked fears inaccurately and inconsistently about class actions, and has been highly supportive of the conservative justices' attempts to shut the courthouse doors to this type of collective action. In a recent editorial, the WSJ attacked the shareholder lawsuits at issue in Halliburton as "economically destructive" and beneficial only to plaintiffs lawyers, who have "dined out for years on the windfall of securities class-action suits."
Based on Supreme Court precedent, securities class action plaintiffs can file suits based on the "fraud on the market" theory. This is a 25-year-old legal doctrine that assumes for the purposes of class certification that all publicly available information is reflected in a company's stock price. Rather than forcing plaintiffs at this pre-trial stage to show that they relied on any one fraudulent statement made by a corporate officer, the fraud on the market theory assumes that in a relatively efficient market, those statements affected and unjustly inflated the company's stock price. These presumptions are later rebuttable at trial, where the merits of this alleged fraud can be litigated.
Pro-business groups like the U.S. Chamber of Commerce share the WSJ's point of view that despite these decades of precedent, shareholders should no longer be able to proceed to trial as a class in this fashion. In fact, the Chamber dedicated a day-long event to the Halliburton case, calling lawsuits based on the fraud on the market theory "a situation basically directly out of a Kafka novel" because it makes it too easy for plaintiffs to bring class actions. The Chamber has been clamoring for the Supreme Court to overturn Halliburton, at least in part because it contends securities class actions are meritless and abusive. Right-wing media frequently repeat the Chamber's spin to pretend class actions are an unjustified "cash cow for trial lawyers."
This myth has been pushed so aggressively that it has cropped up in well-respected publications like The American Prospect, which recently wrote that such lawsuits are "now routinely filed by class-action lawyers any time the stock price takes a sudden dive." The Prospect also argued that "most of these [lawsuits] are frivolous," without providing evidence to support that claim.
Recent media reports on President Obama's judicial nominations misleadingly suggest that his confirmation record is now better than that of his predecessor George W. Bush, but rampant GOP obstructionism is still contributing to an alarming amount of "judicial emergencies" across the country.
National Review Online and the right-wing Heritage Foundation recently used Obama's overall total as well as his 2014 first quarter judicial confirmation numbers to claim that the president "outpaces" his Republican predecessor, at a rate that will eventually "steamroll" the total number of Bush appointments to the federal bench.
Unfortunately, this misinformation appears to have been spurred by recent media stories that reported raw confirmation numbers, without sufficient context. For example, according to Politico, Obama is now "outpacing George W. Bush on judges," because he has succeeded in getting 237 judges confirmed, while 234 judges were confirmed "by this point in [Bush's] presidency." This total number of seated judges is what right-wing media choose to focus on in their extrapolation of Obama's ultimate record, while ignoring the president's actual seating rate (confirmations in light of total vacancies). When the number of vacancies Obama has to deal with in comparison to Bush is added to an examination of their respective records, it is evident that the president still has a long road ahead to leave office with a rate similar to his predecessor, especially in the face of Republicans' unprecedented obstructionism.
Even though the total number of Obama's confirmations has exceeded Bush's, Obama has more vacancies to fill and has to appoint more nominees than his predecessor. According to the Alliance for Justice, "Only 79% of Obama's nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%." As a result, says AFJ, "Bush fared significantly better in getting his nominees confirmed" than Obama has so far.
This has real-world consequences by delaying and denying justice across the country.
The New York Times missed the opportunity to explore the close connection between Donors Trust, the right-wing's "Dark Money ATM," and the conservative activist behind high-profile Supreme Court cases that are successfully attacking decades-old civil rights precedent.
The Times recently ran a profile of Edward Blum, the director of the Project on Fair Representation, a non-profit group that solicits plaintiffs to challenge civil rights policy and law like affirmative action and the Voting Rights Act. The article reported that this self-described "one-man organization" receives funding from "conservative groups like the Lynde and Harry Bradley Foundation and the Searle Freedom Trust." This support from some of the right-wing's biggest donors has allowed Blum to pursue high-profile cases that are challenging half a century of civil rights precedent.
Blum was the driving force behind the failed attempt to overturn constitutional race-conscious admissions policies in the recent case of Abigail Fisher, a white student who sued the University of Texas after she was denied admission. Blum also organized the recent challenge to the Voting Rights Act, which successfully gutted a key provision of the Act that protects minority voters from racial discrimination at the polls. Blum is now rolling out new websites to troll for other rejected students in his attempt to once again provide the Supreme Court's conservative justices an opportunity to overturn case law that allows affirmative action.
Right-wing media champions of voter purges have been quiet in response to a federal appeals court's decision that Florida officials' attempts to remove noncitizens from voter rolls clearly violated federal law, which protects citizens from these overbroad and error-riden challenges.
Shortly before the 2012 election, Florida Governor Rick Scott (R) and his Secretary of State Kenneth Detzner (R) undertook an effort to purportedly purge the state's voter rolls of noncitizens. The Department of Justice challenged the purge in court, arguing that Florida had violated federal law that prohibits states from booting voters off the rolls within 90 days of a federal election. This law is in place to prevent depriving citizens of the vote because of faulty database checks, performed without enough time to correct the state's errors.
At the time, right-wing media outlets like The Wall Street Journal and National Review Online were overwhelmingly supportive of Governor Scott and his attempts to block people from voting. WSJ's senior editorial writer Jason Riley dismissed the DOJ's challenge, since "[t]he Obama Administration sees racial animus and voter-suppression conspiracies in any Republican-led effort to improve ballot integrity." NRO contributor Hans von Spakovsky also dedicated numerous posts to the issue, calling the DOJ's lawsuit "spurious," and evidence of "politics and ideology driving the legal decision-making" at the agency "as opposed to nonpartisan, objective analysis of the facts and the law."
Von Spakovsky had even more to say on the subject. In a different post about the case in 2012, he complained about the DOJ's "lawlessness" in its attempts to restore the voting rights of affected citizens in Florida:
Time and again, the Holder Justice Department has exhibited politically driven law enforcement. But its latest instance of lawlessness is absolutely brazen.
This goes far beyond Holder's previous actions, such as belittling claims of voter fraud and trying to stop voter ID and other reform measures intended to improve the integrity of the election process. This letter would directly abet vote thieves in a key state as Holder's boss seeks reelection [in 2012].
The Wall Street Journal editorial board was quick to support a Supreme Court decision on campaign finance, in which the conservative justices once again ignored legal precedent and usurped the role of Congress to legislate complicated policy.
On April 2, the Supreme Court decided McCutcheon v. FEC (also known as "the next Citizens United"), and held that overall campaign contribution limits -- previously set at $123,200 -- were unconstitutional. Although the Court did not rule on the individual campaign limits of $5,200 per candidate in the two-year election cycle, the conservative justices struck down the aggregate limits, allowing future contributions to be spread among an unlimited amount of candidates, political parties, and PACs. Although Congress had set those overall campaign limits in the wake of the Watergate scandals to guard against institutional corruption or the appearance of corruption -- a goal repeatedly upheld by the Supreme Court -- the Court in McCutcheon ignored this precedent, judicially narrowing future regulation so that "Congress may target only a specific type of corruption -- 'quid pro quo' corruption."
The WSJ, which has been misinforming about this case from the beginning, was predictably pleased with the outcome in McCutcheon. Although the WSJ editorial board lectures about fidelity to the law when it comes to legal decisions that might affect corporate wealth, it was not so bothered at the Court's rejection of precedent in McCutcheon. In an April 2 editorial, it celebrated the decision as a win for "the core promise of American liberty" and applauded the Court for "walking back" a "historic blunder." In fact, the WSJ really only had one complaint about the McCutcheon decision: why didn't conservative Chief Justice John Roberts go even further?
In its original First Amendment sin, Buckley v. Valeo in 1976, the Court said government can regulate political contributions to limit the risk of "quid pro quo" corruption. That is, money in return for a political favor. But Congress has gone well beyond that narrow definition of corruption to include trying to limit some donors but not others or simply the amount of money in politics.
We wish the Court had gone further and overturned all of Buckley, as Justice Clarence Thomas urged in his concurring opinion. As he put it, Buckley is now "a rule without a rationale" given how much the Court has eroded its original logic. But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress. Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.
We hope it's soon given the pernicious doctrine laid out in the dissent joined by all four liberals. "The First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters," wrote Justice Stephen Breyer (his italics).
"Collective speech" sounds Orwellian as a legal doctrine that invites government as a leveller of free speech and is alien to the U.S. constitutional tradition. The scary thought is that the Court is only one heart attack away from gutting the core promise of American liberty.
The Wall Street Journal is so excited about a lawsuit that could gut the Affordable Care Act (ACA) that it has dedicated two editorials to lauding the challenge in the past week.
On March 25, the D.C. Circuit Court of Appeals heard oral arguments in Halbig v. Sebelius, a right-wing lawsuit based on a far-fetched anti-ACA theory that could make it impossible for some consumers to obtain tax credits from the federal government to purchase health insurance. The editorial board of the WSJ considers this counterintuitive goal of a law meant to make insurance affordable the "faithful interpretation of the statute."
The central argument of the suit is that a provision within the ACA can be misread to imply consumers who buy insurance from the federal exchange are not eligible for the tax credits that make health insurance affordable. Most legal experts, as well as those who helped draft the law, agree that this was nothing more than a drafting error, not evidence of Congress' alleged intent to deny subsidies to some consumers. But because many states (particularly those with Republican governors or Republican-led legislatures) refused to set up their own exchanges, conservatives saw an opening to attack this key part of the ACA.
Halbig's legal theory was cooked up by Michael Cannon of the Cato Institute and Jonathan Adler, a contributor to National Review Online and The Washington Post's libertarian legal blog The Volokh Conspiracy. Right-wing media have joined Adler and Cannon in vocally supporting the suit, even though legal experts have soundly rejected the challenge as "an absurd distortion of the law" and lacking merit.
But The Wall Street Journal continues to have a particular affection for Halbig. On March 23, the editorial board celebrated Halbig's potential to "vindicate the rule of law" in an Obama administration it characterized as "willful[ ] in defying limits on executive power."
Its March 30 editorial was more of the same, but with even more misinformation about the legal issues underpinning the Halbig case:
Liberals keep dismissing challenges to ObamaCare, political and legal, so it's no surprise they mostly ignored last week's oral argument at the D.C. Circuit Court of Appeals that could send another case to the Supreme Court. Coming in the week the White House wheeled out its 38th rewrite of the law, Halbig v. Sebelius is even more important for the contours of executive power and the rule of law.
This ought to be a straightforward matter of statutory construction. Democrats put conditions on the subsidies to pressure Governors to join ObamaCare on the familiar U.S. federal-state cooperative model, but they never anticipated lasting unpopularity and opposition. To resolve this political problem, the IRS brushed off the statute and expanded the subsidies to both types of exchanges.
Arguing before a three-judge panel, Assistant Attorney General Stuart Delery pointed up "interpretive tension" among various complex provisions. But he also suggested that reading the text literally would undermine ObamaCare's purpose and structure of a nationwide system of subsidized health care. Try to parse that one: This is a law that its defenders argue will self-destruct if implemented as drafted by its architects.
As Chief Justice John Roberts famously wrote upholding the insurance purchase mandate, "It is not our job to protect the people from the consequences of their political choices." It is also not their job to protect politicians from the consequences of their policy choices.
Ramesh Ponnuru, senior editor at National Review Online, is again pushing misinformation about a significant reproductive justice case currently in front of the Supreme Court, which could grant unprecedented rights to secular, for-profit corporations at the expense of American workers.
The Supreme Court recently heard Sebelius v. Hobby Lobby, a case that could drastically rewrite First Amendment and corporate law to make it easier for religious business owners to deny their female employees comprehensive employer-sponsored health insurance. Hobby Lobby, owned by the conservative Christian Green family, specifically objects to the fact that the Affordable Care Act (ACA) newly accepts all of the Institute of Medicine's recommendations for crucial women's preventive services, including contraceptive methods and counseling. Right-wing media have repeatedly misled on this case, and were quick to parse the transcripts in the wake of the oral arguments to declare victory for Hobby Lobby.
Ponnuru weighed in again on the case in a March 27 post, oversimplifying the federal law that Hobby Lobby is suing under to ignore the rights of Hobby Lobby's thousands of female employees, and misrepresenting a scientific study to support his unscientific arguments.
During the oral argument Justice Kennedy asked whether, on the government's theory of the case, it would be permissible to force companies to cover abortion in their insurance policies for their employees. I think the answer to that question is clearly yes. ... The case itself concerns a company that objects to covering drugs that may cause abortion.
For the purpose of the Religious Freedom Restoration Act, it is a sufficient answer to these points that the owners sincerely believe that offering coverage for the disputed drugs would violate their consciences. They sincerely believe that stopping implantation is equivalent to abortion, that the drugs pose an unacceptable risk of stopping implantation, and that they would be unacceptably complicit in what they consider to be an evil if they offered the coverage. To judge the RFRA claim, judges must decide whether those beliefs justify an exemption from a legal requirement without evaluating the merits of those beliefs.
Pro-lifers object to "ending a pregnancy" and "abortion" because they entail causing the death of a living human organism, which is indisputably what the human embryo is pre-implantation. The "view" that preventing implantation causes the end of a human life in that sense is simply a fact. Of course the law does not define the human embryo as "a human life" in the sense of a person with rights, but of course it does not so define unborn children long past implantation.
Ponnuru is barely half-right on the law. It is not "sufficient" for the owners of Hobby Lobby to assert only that they "sincerely believe" that some forms of contraception cause abortions (even though they really, really don't) -- they also have to show that the government has substantially burdened those beliefs. Even then, these sincere, if erroneous, burdened beliefs still must outweigh Congress' reasons for enacting the challenged law in the first place. Under RFRA, the government can at times indirectly burden religious exercise in a generally applicable law if it is necessary to further a "compelling governmental interest."
After the Supreme Court heard arguments in the legal challenge to contraceptive coverage under the Affordable Care Act (ACA), The Wall Street Journal's editorial board was quick to celebrate by pushing tired myths about the case and encouraging the judicial creation of new rights for corporations.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporate employers the ability to deny their employees preventive health insurance coverage based on their owners' religious objections. The owners of Hobby Lobby, the Green family, identify as conservative Christians who oppose some forms of birth control that they have decided -- in the face of scientific evidence to the contrary -- cause abortions.
Right-wing media have relished this opportunity to reject reproductive rights and come out in support of the Green family and Hobby Lobby. In their first editorial since oral arguments, the WSJ's editors were predictably pro-Hobby Lobby, calling the Obama administration's argument that a for-profit, secular corporation is incapable of religious belief "remarkable":
[T]he Administration's remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as "persons" for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? "Could an employer preclude the use of those items as well?" asked Justice Sonia Sotomayor in the day's first question.
Yet no one is "precluding" anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
But the fact that "most health plans" cover contraception is precisely the point, just not in the way the WSJ thinks.