Yesterday, the Supreme Court ruled that the Obama administration has violated federal law in its implementation of Obamacare. Specifically, it has violated the Religious Freedom Restoration Act (RFRA), a law passed (almost unanimously) twenty years ago by a Democratic House and Senate and signed into law by Democratic President Bill Clinton. Adam White provides a nice overview and analysis of the ruling. I just wanted to highlight a few aspects of it.
This case, Burwell v. Hobby Lobby, wasn’t decided on constitutional grounds but rather on the basis of federal law. And it didn’t overturn any part of Obamacare’s text; rather, it overturned the administration’s insistence that, through its own rules generated under Obamacare’s text, it could force all large employers to offer free abortifacients, such as the abortion drug ella, because such abortifacients are indispensable forms of “preventive health care” (that is, “health care” that prevents one’s own offspring from continuing to survive in the womb).
Nor did the Court overrule the administration’s view that preventive health care requires (to quote Jonathan Last) offering a cure for “the disease commonly known as ‘pregnancy.’” Rather, the Court ruled that the administration’s chosen means to that end violates federal law. Referring to RFRA, the Court wrote that, “If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government ‘demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Court didn’t take a position on that first point but ruled on the second that there are clearly less restrictive means of achieving this end, such as the (nevertheless deeply flawed) one that the administration has chosen to provide for nonprofit corporations.
The case hinged in part on whether for-profit corporations are “persons” under RFRA. The Court, in an opinion authored by Justice Samuel Alito, wrote, “RFRA itself does not define the term ‘person.’ We therefore look to the Dictionary Act, which we must consult ‘[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.’…Under the Dictionary Act, ‘the wor[d] ‘person’…include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.’”
Amazingly, the Obama administration’s Department of Health and Human Services (HHS) — to quote the Court — “concedes that a nonprofit corporation can be a ‘person’ within the meaning of RFRA’ but denies that a for-profit corporation can be the same. The Court replied,
“This concession effectively dispatches any argument that the term ‘person’ as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term ‘person’ includes some but not all corporations. The term ‘person’ sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”
While recognizing that closely held corporations can exercise the religious views of their owners, the Court adds:
“[I]t seems unlikely that…corporate giants…will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders — including institutional investors with their own set of stakeholders — would agree to run a corporation under the same religious beliefs seems improbable.”
Twenty-five years have passed since a lone man stood in front of Chinese tanks and dared to defy Beijing’s crackdown on pro-democracy protesters. His bold challenge to the Chinese Communist Party was one of history’s most profound reminders of the insatiable human desire to live free even in the face of terrifying state power.
Support for the decision of Brandeis University not to award Ayaan Hirsi Ali an honorary degree, after previously announcing it would do so, has coalesced around the notion that while Islamic radicalism can be criticized, even condemned, one cannot criticize Islam itself. By condemning both, and by implying strongly that Radical Islam and Islam are indistinguishable, Ms. Ali—so the argument goes—not only does not deserve an honorary degree; she is, in fact, a bigot.
The hot dog is in decline in America, writes Paul Lukas at Bloomberg, and one thinks, "What isn't?" What institution, anyway. If everything were not in decline, then what would there be for journalists to write about (see Andrew Ferguson on George Packer and Haynes Johnson) and what would politicians have to campaign about?
On July 2, 1776, the Continental Congress declared independence. George Washington declared that day that “The time is now near at hand which must probably determine whether Americans are to be freemen or slaves....The fate of unborn millions will now depend, under God, on the courage and conduct of this army.” A useful reminder for us, in a week when we rightly celebrate a Declaration, a document embodying a great idea, that speech needs to be backed up by arms, and that all still depends on the "courage and conduct" of our armed forces.
Yesterday the Supreme Court heard oral arguments on California’s Proposition 8, which defines marriage as being between couples of the opposite sex. Today they’re hearing them on the Defense of Marriage Act, which defines marriage as a union of one man and one woman at the federal level. Like Roe v. Wade, the high court’s decision on these cases is likely to fuel the culture war for a generation or two, at least. Unlike with Roe, the Court seems to understand that it’s been handed an issue of enormous consequence.
According to an annual report for 2012 just released by the Department of Homeland Security (DHS), DHS processed a total of 205,895 Freedom of Information Act (FOIA) requests during the year. The report, presented by Acting Chief Freedom of Information Act Officer Jonathan R. Cantor, shows that DHS reduced the backlog of such requests by 30 percent during the year. However, a deeper look at the numbers reveals that the agency only fully granted just over 10 percent of FOIA requests that were processed.