We had two different federal appeals court panels give conflicting rulings on Tuesday regarding the legality of subsidies in the Affordable Care Act. This came about due to some ambiguities in the writing of the law–primarily a proof reading error at one point which suggests that only insurance purchased in state exchanges can allow subsidies. The bulk of the law makes it clear that people purchasing coverage can qualify for subsidies regardless of whether purchased on a federal or state exchange.
It is impossible to predict with certainty, but legal experts are generally predicting that the Supreme Court would follow precedent and go with the overall intent of the law as opposed to allowing the conservative activist judges from the United States Court of Appeals for the District of Columbia to overturn the law.
In the event that the Supreme Court should support this idea we could then have a rather chaotic situation. About 4.5 million people would lose their subsidies, making many people very angry at any Republican politicians who refused to work towards a fix. There would be two potential solutions. One would be for each state to build their own exchange. Presumably they would now have the benefit of the experience of those working on the federal exchange, so this might not be as difficult as it sounds. However, a far simpler solution would be for Congress to pass legislation to clear up the ambiguous wording in the Affordable Care Act which led to this situation.
We could have rather interesting political battles if Republicans would continue to call for repeal and refuse to act to make the fix. This would anger many voters who in effect are receiving a significant tax increase by losing their subsidies, and ultimately might lose their medical care. Would Republicans stick to demanding repeal or be forced to give into demand to allow people to receive the subsidies and continue their insurance coverage? If I was a Republican politician, I think I might hope that the Supreme Court rules in favor of the current subsidies and avoids this political problem.
The weakness of Republican efforts to paint Barack Obama as a dictator who has been abusing his presidential powers have been shown to be a sham with John Boehner’s attempt to find grounds for a law suit against Obama. Boehner, in a desperate attempt to ward off the Tea Party fanatics who are pushing for impeachment, decided on filing a frivolous law suit against Obama instead. For years Republicans have made all sort of claims of executive overreach under Obama, after ignoring real cases of abuse of executive power under Bush and Cheney. With all their screaming of a dictatorial president out of control, all Boehner could come up with was a complaint that Obama postponed enforcing the penalties in the employer mandate contained in the Affordable Care Act by two years.
The biggest irony here is that Republicans opposed the Affordable Care Act and the employer mandate (despite previous Republican support for mandates before Obama called for them). Republicans are suing Obama for failing to enforce a law which they opposed. Obama granted the two year extension in order to make it easier for small business to comply with the Affordable Care Act. With this suit, Boehner and the House Republicans are taking a stand in opposition to the interests of small business owners.
Obama is correct in calling this a political stunt and had these comments on the do-nothing Congress:
As long as Congress will not increase wages for workers, I will go and talk to every business in America if I have to. There’s no denying a simple truth: America deserves a raise, and if you work full-time in this country, you shouldn’t live in poverty. That’s something that we all believe.
Now, here’s where it gets interesting. There are a number of Republicans, including a number in the Texas delegation, who are mad at me for taking these actions. They actually plan to sue me. Now, I don’t know which things they find most offensive — me helping to create jobs, or me raising wages, or me easing the student loan burdens, or me making sure women can find out whether they’re getting paid the same as men for doing the same job. I don’t know which of these actions really bug them.
The truth is, even with all the actions I’ve taken this year, I’m issuing executive orders at the lowest rate in more than 100 years. So it’s not clear how it is that Republicans didn’t seem to mind when President Bush took more executive actions than I did. Maybe it’s just me they don’t like. I don’t know. Maybe there’s some principle out there that I haven’t discerned, that I haven’t figure out. You hear some of them — ‘sue him,’ ‘impeach him.’ Really? Really? For what? You’re going to sue me for doing my job? Okay.
I mean, think about that. You’re going to use taxpayer money to sue me for doing my job — while you don’t do your job.
There’s a great movie called ‘The Departed’ — a little violent for kids. But there’s a scene in the movie where Mark Wahlberg — they’re on a stakeout and somehow the guy loses the guy that they’re tracking. And Wahlberg is all upset and yelling at the guy. And the guy looks up and he says, ‘Well, who are you?’ And Wahlberg says, ‘I’m the guy doing my job. You must be the other guy.’ Sometimes, I feel like saying to these guys, ‘I’m the guy doing my job, you must be the other guy.’
So rather than wage another political stunt that wastes time, wastes taxpayers’ money, I’ve got a better idea: Do something. If you’re mad at me for helping people on my own, let’s team up. Let’s pass some bills. Let’s help America together.
It is not clear what will become of this suit. The first question is whether the House has legal standing to file the suit. If it does proceed it is certainly possible that both Bush and Obama technically broke the law in extending deadlines independent of Congress. Even should there ever be a ruling against Obama, it will not make much of a difference. By the time it works through the courts the issue will no longer matter as the temporary extension will be coming towards an end, if not already ended. It is over a pretty minor issue in the implementation of the Affordable Care Act and will have no bearing on the overall law. It is a pretty empty gesture by Boehner, but he has no real grounds to support right wing rhetoric that Obama has abused executive power.
Conservatives applauding the Supreme Court decision in the Lobby Hobby case are showing, once again, that to them freedom means the “freedom” to impose their religious views upon others. When conservatives oppose the requirement that a business provide insurance to their employees in any condition they might have a consistent libertarian argument, ignoring the fact that many Republicans supported such mandates, along with the individual mandate, until quite shortly before the Affordable Care Act was passed. When they fight for a specific exclusion based upon some people’s religious views about contraception then we have an entirely different matter. As I noted yesterday, this is hardly any type of victory for religious freedom.
It might be a different matter if all the employees shared the views of their employers, but the reality is that the employers of Hobby Lobby are forcing their views upon their employees. As The New York Times points out:
Nothing in the contraceptive coverage rule prevented the companies’ owners from worshiping as they choose or advocating against coverage and use of the contraceptives they don’t like.
Nothing compels women to use their insurance on contraceptives. A woman’s choice to use or not to use them is a personal one that does not implicate her employer. Such decisions “will be the woman’s autonomous choice, informed by the physician she consults,” as Justice Ginsburg noted. There also is no requirement that employers offer employee health plans. They could instead pay a tax likely to be less than the cost of providing insurance to help cover government subsidies available to those using an insurance exchange.
Including contraception coverage in health insurance also isn’t likely to increase the cost to employers as preventing unwanted pregnancies is less expensive than covering the medical expenses of such pregnancies. Nor can denial of coverage of contraception be justified based upon religious opposition to abortion as making contraception more readily available is an effective means of reducing the number of abortions. This is purely a matter of forcing the religious opposition to contraception held by the religious right upon others.
Republicans have long claimed that Roe v. Wade was an act of an activist court to impose liberal views upon them, energizing many religious conservatives to turn out to vote for them. Today’s Supreme Court decision allowing come companies to avoid the requirements in the Affordable Care Act to include contraception on religious grounds might do the opposite. This decision will undoubtedly anger many women who will see this as meaning that their access to contraception coverage is dependent upon their employer, while the Affordable Care Act was intended to free them of this limitation and provide access to affordable contraception. It also highlights what has been clear for years that the agenda of the religious right is to block not only abortion but contraception.
Mother Jones has gathered eight of the best lines in Ruth Bader Ginsburg’s dissent in the Hobby Lobby case:
Ginsburg wrote that her five male colleagues, “in a decision of startling breadth,” would allow corporations to opt out of almost any law that they find “incompatible with their sincerely held religious beliefs.”
“The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage”
“Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”
“Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”
“It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
“Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”
“Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution's] Establishment Clause was designed to preclude.”
“The court, I fear, has ventured into a minefield.”
Think Progress pointed out how this is not a victory for religious freedom and hurts people of faith:
But while conservatives would have the American public believe that protecting Hobby Lobby is about protecting all religious people, the reality is that today’s ruling actually hurts people of faith. In fact, a Public Religion Research Institute (PRRI) survey conducted in early June found that a substantial majority of almost every major U.S. Christian group support the idea that publicly-held corporations and privately-owned corporations should be required to provide employees with healthcare plans that cover contraception and birth control at no cost. This is likely why somanyprogressiveChristianleaders have vocally opposed Hobby Lobby in the press, why Americans United for the Separation of Church and State submitted an amicus brief to the Supreme Court opposing Hobby Lobby on behalf of nearly 30 religious organizations, and why both the Jewish Social Policy Action Network and the American Jewish Committee submitted their own amicus briefs decrying the corporation’s position.
And while white evangelicals were an outlier in the PRRI poll — only 40 percent of evangelical respondents supported the ACA’s contraception mandate for privately-owned corporations — a sizable cadre of conservative Christians have publicly articulated nuanced, faith-based opposition to the case in recent months, drawing attention to the fact that Hobby Lobby only speaks for a small minority of people of faith in America. David Gushee, an evangelical Christian professor of Christian Ethics and director of the Center for Theology and Public Life at Mercer University, offered an extensive treatment of the case in the Associated Baptist Press in April. He examined the issue from the perspective of a Christian theologian, noting that any attempt to broaden the legal status of businesses to include religious exemptions — however well-intentioned — is inconsistent, dangerous, and unfair to other religious Americans.
“One way to look at it is this: The whole point of establishing a corporation is to create an entity separate from oneself to limit legal liability,” he writes. “Therefore, Hobby Lobby is asking for special protections/liability limits that only a corporation can get on the one hand, and special protections that only individuals, churches and religious organizations get, on the other. It seems awfully dangerous to allow corporations to have it both ways.“
In addition to fearing the social implications of a pro-Hobby Lobby ruling, other evangelical Christians take umbrage with the theological premise undergirding their case — namely, that opposing the ACA mandate is somehow an extension of a pro-life position. Richard Cizik, former Vice President for Governmental Affairs for the National Association of evangelicals, wrote in the Huffington Post this weekend that evangelicals who support Hobby Lobby “are not actually being pro-religious freedom or pro-life.” Similarly, Julia K. Stronks, evangelical Christian and political science professor at Whitworth University, teamed up with Jeffrey F. Peipert, a Jewish family-planning physician, to pen an op-ed for Roll Call earlier this month in which they argue that granting Hobby Lobby religious exemption will actually lead to more abortions. They write:
Although the owners of these for-profit corporations oppose the contraceptive requirement because of their pro-life religious beliefs, the requirement they oppose will dramatically reduce abortions. … Imagine a million fewer unintended pregnancies. Imagine healthier babies, moms and families. Imagine up to 800,000 fewer abortions. No matter your faith or political beliefs, our hunch is that we can all agree that fewer unplanned pregnancies and fewer abortions would be a blessing.
Jonathan Merritt, an evangelical Christian writer and blogger for the Religion News Service, went even further in his theological challenge to the case, arguing that conservative evangelicals shouldn’t call businesses “Christian” in the first place.
“The New Testament never—not one time—applies the ‘Christian’ label to a business or even a government,” he writes. “The tag is applied only to individuals. If the Bible is your ultimate guide, the only organization one might rightly term ‘Christian’ is a church. And this is only because a church in the New Testament is not a building or a business, but a collection of Christian individuals who have repented, believed on Christ, and are pursuing a life of holiness.”
These voices represent the majority of religious Americans who insist that today’s pro-Hobby Lobby decision isn’t about protecting “religious liberty.” Instead, it’s just a victory for one kind of religion, specifically the (usually conservative) faith of those privileged enough to own and operate massive corporations. That might be good news for the wealthy private business owners like the heads of Hobby Lobby, but for millions of religious Americans sitting in the pews — not to mention thousands working in Hobby Lobby stores — their sacred and constitutional right to religious freedom just became compromised.
In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.
While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.
“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”
Chief Justice John G. Roberts Jr., writing for the court, was keenly alert to the central role that cellphones play in contemporary life. They are, he said, “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”
“The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”
A federal judge ruled Wednesday that Indiana’s ban on gay marriage is unconstitutional, immediately allowing same-sex couples across the state to receive marriage licenses.
U.S. District Judge Richard Young did not issue a stay on his ruling. However, the office of Attorney General Greg Zoeller, which represented the state, filed an emergency motion for stay pending appeal with the U.S. District Court this afternoon…
Young’s decision in the Indiana case mirrors “what we’re seeing in all the districts courts” that have taken up challenges, said Carl Tobias, a University of Richmond School of Law professor who has been closely monitoring court cases across the U.S. involving the same-sex marriage issue.
The order says: “It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love.”
Judges in more than a dozen other federal district courts have ruled along the same lines as Young, he said. Since the first ruling in a Utah case in December, he said, every challenge to a state ban has been successful.
The rulings by these federal district courts are being appealed and ultimately the decision will probably be made by the Supreme Court. While it will take at least until next year to see how that plays out, the 10th Circuit Court has upheld the decision of a Utah judge:
A federal appeals court on Wednesday ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.
By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process…
University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”
It is the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.
“Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said…
The ruling affects all states in the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
The court’s majority opinion focused on the 14th Amendment, which gives equal protection to American citizens. The court said its reading of the Constitution shows that the legal rights of married couples has nothing to do with the gender of those in the union.
“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage.
Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.
Laws against gay marriage have been struck down in seven states including Texas in the past sixty-five days. In each case there is a stay in effect and presumably the issue will be decided by the Supreme Court. A trial is also underway in Michigan to challenge the ban on same-sex marriage.
Supreme Court Chief Justice John Roberts used his year-end report for 2013 to call for more funding for federal courts and lambast sequestration’s effect on the judiciary.
In the New Year’s Eve missive, Roberts referenced the seasonally appropriate “A Christmas Carol” by Charles Dickens to guide a “look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the judiciary does not receive the funding it needs.”
Roberts wrote that while the judiciary recognizes the need for frugality, its operating costs are only 0.2 percent of the federal budget and it has been making austerity moves for years, even before the sequester went into effect. Because courts cannot manage their caseload, however, Roberts said the effects of sequestration hit them harder.
Barack Obama has certainly not been perfect (even if his faults have been greatly exaggerated) and the prospect of Hillary Clinton as president leaves me quite unexcited about voting. Despite this, it is important to remember the alternative. One of the most significant differences between potential Democratic presidents and Republican presidents is the type of people they will appoint to the Supreme Court. Nothing is definite as Republican appointees have sometimes voted for liberal positions (most recently John Roberts supporting the Affordable Care Act), but with the increased ideological gap it is best to fear the worst. While I would separate this from any pressure for Ruth Bader Ginsberg to retire before she is ready, Think Progress does have some warnings as to what will occur if she is replaced by a Republican president:
No More Marriage Equality: United States v. Windsor — the decision striking down the unconstitutional Defense of Marriage Act — was a 5-4 decision with Ginsburg in the majority. If Ginsburg is replaced by another conservative, DOMA could roar back to life. At the very least, the nation’s drive towards nationwide marriage equality could come to a screeching halt.
Criminalizing Sex: Although Lawrence v. Texas, which struck down Texas’ “sodomy” law, was a 6-3 decision, one of those six justices has since been replaced by the staunchly conservative Justice Samuel Alito. If another member of the Lawrence majority is replaced, it could lead to gay sex being outlawed entirely in several states. Lawrence‘s holding, however extends far beyond gay couples to prohibit laws criminalizing non-commercial sexual activity between consenting adults. Thus, if Lawrence falls, the government could find its way into every American’s bedroom.
Watering Down Minority Votes: Five justices voted in League of United Latin American Citizens v. Perry to strike part of a Texas redistricting map because it tried to protect an incumbent Republican congressman by reducing the impact of Latino voters. If Ginsburg is replaced by a conservative, these kinds of tactics could become common.
Judges for Sale: Four justices joined a dissent arguing that there’s nothing wrong with a wealthy businessman spending $3 million to place a judge on a state supreme court — only to have that judge cast the key vote to overturn a $50 million verdict against the businessman’s company. Ginsburg’s replacement could places judges up for sale.
Millions Without Health Care: Finally, the decision that largely preserved the Affordable Care Act was a 5-4 decision, with four justices voting to repeal Obamacare in its entirety. If those four justices gain a fifth vote, it could not only strip millions of Americans of the health insurance that they will soon gain under this law, but it could toss the entire American health care system into chaos. Among other things, if the dissent’s plan to repeal the Affordable Care Act in its entirety were to actually happen, Medicare could lose its ability to pay claims until the agency that administers the program completed a lengthy rulemaking process that can take months.
And on top of all this, we could wind up with a president who believes in creationism, or who would choose a Supreme Court justice who would support the teaching of creationism in the schools.
Earlier this year, Edward Snowden released information on NSA surveillance, including the accumulation of information on American citizens which appears to be far in excess of either what is necessary or what is allowed under the Constitution. A federal judge agreed with this criticism today:
A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.
In a 68-page ruling, Judge Richard J. Leon of the District of Columbia called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”
Leon wrote that old judicial decisions with regards to privacy rights need to be reevaluated in light of modern technology with previous cases (such as Smith vs. Maryland) not necessarily remaining relevant:
[T]he almost-Orwellian technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data in perpetuity, was at best, in 1979, the stuff of science fiction.
Harry Reid and Senate Democrats struck a blow against the tyranny of the minority today by exercising the nuclear option. Republican influence in the Senate is out of proportion to the number of people they actually represent due to the small Republican states having the same number of Senators as much larger states, which generally are Democratic. The Republicans have further extended this advantage by abusing the filibuster, often blocking appointments and legislation with a minority vote. In the entire history of the United States, 168 presidential appointments have been blocked. Eighty-two were under Obama and eighty-six were under all other presidents. While in the past the filibuster was more likely to be reserved for cases where the minority party had a real objection, Republicans are often using the filibuster to block qualified appointees just because they were appointed by Barack Obama. Republicans still do not accept Obama’s election and subsequent reelection
The impact of this is somewhat limited as it applies to executive branch appointments and most judges but does not apply to Supreme Court nominees or legislation. Republicans, who are outraged by this extension of majority rule, threaten to extend this should they take back control of the Senate so they can appoint more Scalias and Clarence Thomases to the Supreme Court. (Why do Republicans hate America so much?) Rand Paul even called Reid a big bully.
In order for the Republicans to take advantage of this and carry out their threats, they will need a Republican president as well as control of the Senate. At least in the short run, this doesn’t look likely. Demographic changes have made it difficult for Republicans to take the White House unless the party changed dramatically. The Republicans might manage to take control of the Senate in 2014 if all the close races go their way. In 2016, a presidential election year which already is more favorable to Democrats than an off-year election, the Democrats have to defend ten seats while the Republicans will have to defend twenty-four. While red state Democratic Senators are among those running in 2014, several blue state Republicans will be on the ballot in 2016. I’m sure Harry Reid considered the likelihood of continued Democratic control of the Senate when deciding to go ahead with the nuclear option.