Hobby Lobby and the Perpetuation of Obamacare

by Dr. Gerard Emershaw

In Burwell v. Hobby Lobby, the Supreme Court ruled that the contraceptive mandate of the Patient Protection and Affordable Care Act (PPACA) violates the First Amendment religious rights of closely held for-profit corporations by violating the Religious Freedom Restoration Act (RFRA). The RFRA states: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” By a 5–4 margin along traditional ideological lines, the Court struck down the contraceptive mandate of the PPACA in the case of closely held for-profit corporations which have religious objections. The owners of Hobby Lobby claimed that being required to cover certain forms of contraceptives such as Plan B and IUDs violated their religious rights because they consider these particular contraceptives to be akin to abortion.

Justice Alito stressed that the ruling was very narrow and only applied to closely held for-profit corporations objecting to a law on religious grounds. He claimed that few situations would arise which would be relevant under the holding. While the First Amendment religious freedom aspect is the one which most commentators have focused upon, there is a far more important aspect that has been overlooked. It does bear noting, however, that granting a corporation—even a closely held one—religious rights is dubious. A corporation is not identical with its shareholders. If business owners wish to have their company as their alter ego, then they are perfectly free to establish their business as a sole proprietorship or a partnership. By forming a corporation and gaining the benefit of limited liability, shareholders in a closely held corporation give up the right to use their business as their alter ego. A corporation is a fictional person which has a fiduciary duty to produce profits for its shareholders. It is simply not the kind of entity which has religious values. While the personhood that is granted to corporations is a legal fiction aimed at defending the Constitutional rights of shareholders, granting freedom of religion to a corporation seems to be taking things at least one step too far.

The more important feature about the case is what it demonstrates about the future of Obamacare. Hobby Lobby is not going to derail Obamacare. Employees of corporations such as Hobby Lobby will either do without one benefit of the PPACA or the Obama administration will find some other way to accomplish the same end as the contraceptive mandate—most likely allowing such corporations to pass the buck and force taxpayers as a whole to somehow foot the bill. Justice Alito—a supposedly conservative Justice—suggested as much in his opinion. The manner in which socially conservative Republicans have celebrated this holding foreshadows an ugly truth. Obamacare is here to stay. Any talk among Republicans about getting rid of the PPACA appears to be nothing but lip service. Given that neoconservatives do not care about deficits or about domestic policy in general and given that RINOs were in favor of corporatist health care back when it was viewed as a more free market alternative to a socialistic single payer system, this should come as no surprise. Republicans have a nasty habit of eventually acquiescing to new progressive Nanny State programs. While the GOP once opposed the programs of the New Deal and the Great Society, it has long since resigned itself to making minor tweaks to these socialistic programs. These so-called conservatives are content to save taxpayers pennies on the dollar by making welfare, unemployment insurance, Medicare, etc. a little more efficient. Even Ronald Reagan for all his huffing and puffing about eliminating the Department of Education ultimately did nothing about it. It is alive and well. Bigger and better than ever. Well, bigger at any rate.

Obamacare is patently unconstitutional. However, it appears to be here to stay. The GOP is likely to use it as a scapegoat when it needs to toss red meat to its base, but like the New Deal, the Great Society, and the Department of Education, the PPACA is going nowhere. In addition to using it as a symbol of the progressive bogeyman, the GOP will now apparently use Obamacare to fascistically pick winners and losers in a crony capitalist fashion. This First Amendment loophole created in Hobby Lobby is likely the first of many. Exemptions to particular mandates in Obamacare will be used by both Democrats and Republicans as a way of granting favors to partisan supporters.

Justice Roberts should take no solace in the fact that he defended the Constitution in the Hobby Lobby case. Two years prior he ignored the Constitution so egregiously that he destroyed his reputation beyond redemption.

Obamacare Surveillence

By Gerard Emershaw

The Affordable Care Act (ACA) has drawn fire for its patent unconstitutionality, its corporatist nature, its website, and its high cost. Another reason to fear and loathe Obamacare is that it provides yet another way for Big Brother to spy on Americans. ACA includes the Federal Data Services Hub (FDSH) which is a “comprehensive database of personal information being established by the Department of Health and Human Services (HHS) to implement the federally facilitated health insurance exchanges.” According to the General Accountability Office (GAO), the purpose of this database is to “provide electronic, near real-time access to federal data, as well as provide access to state and third party data sources needed to verify consumer-eligibility information.” This database will allow the ACA health insurance exchanges to determine the eligibility of Americans for subsidies and to determine mandate penalties by accessing data from the Internal Revenue Service, the Social Security Administration, the Department of Homeland Security, the Veterans Health Administration, the Department of Defense, the Office of Personnel Management, and the Peace Corps. It will include “comprehensive personal information such as income and financial data, family size, citizenship and immigration status, incarceration status, social security numbers, and private health information.” Centralizing so much private information will allow American spy agencies like the FBI and CIA to do one stop shopping for vital information on citizens.

Even if the FDSH is not simply a candy store of private information on which the FBI or CIA can feast, the FDSH is likely going to be patently illegal. The Privacy Act of 1974 makes it illegal for government agencies to share individuals’ private information except in very specific instances such as for statistical purposes by the Census Bureau or Bureau of Labor Statistics, law enforcement purposes, routine use by federal agencies, or for congressional investigations. In addition, the Federal Information Security Management Act of 2002 (FISMA) mandates that federal government agencies develop and implement appropriate security to protect such information. The FDSH is not expected to be able to comply with FISMA by the time the insurance exchanges are scheduled to open.

Even if the FDSH becomes compliant with the law, the potential for misuse of the private information contained in this giant database is great. Even if the federal government does not use this information for nefarious purposes, it cannot ensure that the private entities which will access the information will not misuse it. The insurance exchanges will employ “Navigators” who are “community and consumer-focused nonprofit groups, to which exchanges award grants to provide fair and impartial public education” and “refer consumers as appropriate for further assistance.” There is no way to ensure that these “Navigators” will not misuse the information. It was recently revealed that no criminal background check is required for “Navigators.” Even if they conduct themselves honestly, there is no way to ensure that identity thieves or some other third party with bad intentions will not steal the information from the “Navigators.” Americans simply should not have to be caught between the Scylla of government surveillance and the Charybdis of identity theft when it comes to their confidential records held by government agencies.

Reading, Writhing, Arithmetic, and Death Panels

by Gerard Emershaw

High school freshmen and sophomores at St. Joseph-Ogden High School in St. Joseph, Illinois were presented with the following school assignment:

The following ten people have a problem. They are all in desperate need of Kidney Dialysis (the process that removes wastes from the bloodstream). Unless they receive this procedure, they will die. The local hospital has enough machines to support only six people. That means four people are not going to live. You must decide from the information below which six will survive. Next to each person’s short biography there is a line where you place a score. Put the people in order using 1-10, 1 being the person you want to save first and 10 being the person you would save last. You are only to use the information provided.

The ten patients were identified as follows:

1. A 35-year-old white married female housewife with a 12-year-old son and a 7-year-old daughter.
2. A 65-year-old Latino married male doctor with no children.
3. A 60-year-old black married male lawyer with a 25-year-old son.
4. A 9-year-old white female disabled person.
5. A 20-year-old white male college student.
6. A 40-year-old black married male ex-convict with a 13-year-old son and a 10-year-old son.
7. A 23-year-old white unmarried female prostitute with a 3-year-old daughter.
8. A 35-year-old black married male teacher with no children.
9. A 55-year-old white married female Lutheran minister with a 27-year-old son and a 30-year-old daughter.
10. A 47-year-old black unmarried male police officer with no children.

When asked by reporter Lennie Jarratt, Brian Brooks, the school’s principal stated the alleged reason for the lesson:

The assignment you are referring to is not a “Death Panel” assignment.  The assignment is one in the sociology unit of our Introduction To Social Studies class.  The purpose of the assignment is to educate students about social values and how people in our society unfortunately create biases based off of professions, race, gender, etc.  The teacher’s goal is to educate students in the fact that these social value biases exist, and that hopefully students will see things from a different perspective after the activity is completed.  The teacher’s purpose in the element of the assignment you are referring to is to get students emotionally involved to participate in the classroom discussion, and to open their minds to the fact that they themselves have their own social biases.  The assignment has nothing to do with a “Death Panel.”

We encourage parents to contact their son/daughter’s teachers if they have any concerns about an assignment in the classroom.  That line of communication typically clears up any potential misunderstanding.

Many will be unwilling to take Mr. Brooks at his words and will claim that this lesson plan is a covert method of getting students prepared for and willing to accept death panels in the future. Given the failure of public schools in actually educating students properly and the eagerness of public schools to indoctrinate students, it is possible that Mr. Brooks is being less than honest.

The more interesting question concerns how one should deal with this thought experiment. There are two correct answers. One of these involves the immediate answer. The other is a broader and longer term answer.

One may be more than tempted to use the strategy employed by James Tiberius Kirk when facing the Kobayashi Maru and cheat. However, the rules of this game dictate that six of the ten patients will live, and four will die. Progressives, fascists, communists, and other collectivists who apply utilitarian thinking will rank the patients according to their own warped prejudices. However, judging the value of human beings is not something that a hospital or any business should do. Yes, that is right. A hospital is a business. In order to avoid having to make the kind of moral judgments that ought not be made at all, and especially ought not be made by bureaucratic bean counters, the hospital should simply offer its dialysis services first come, first serve on a contractual basis. While the bleeding heart will object and claim that this is unjust because it means only those who can afford the service will get it, this is actually the most just. Those who can afford the service will pay for it. Perhaps some out of pocket and others through insurance. However, by earning a profit, the hospital will be able to put some of that money back into the business and buy additional dialysis machines. Making the pie bigger through free market profits enables more to benefit.

The longer term answer involves fixing the health care system and the economy in general. If the health care system is overhauled according to free market principles, the cost of dialysis and other crucial medical procedures will drop. However, the economy needs to be based more on free market principles as a whole. If corporatist monstrosities like the Federal Reserve’s “inflation tax,” big government corporate and medical regulations, high taxes, and wasteful government spending were to disappear, then people would be wealthier as a whole and more able to afford necessary medical procedures such as dialysis. In reality, death panels can only exist where there is big government and collectivism.

Obamacare is Still Unconstitutional

by Gerard Emershaw

Back in the 1970s, one of the first absurdist catchphrases from NBC’s “Saturday Night Live” to enter into the zeitgeist was Chevy Chase’s “Francisco Franco is still dead.” Well, Franco is still dead. And more than a year after “Roberts’ Folly,” Obamacare is still unconstitutional. 

1. Even if Obamacare’s individual mandate is a tax and not a penalty, it is an unconstitutional direct tax.
2. If it is a tax, it was a tax imposed by the Supreme Court since Congress intended it to be a penalty. Therefore, the individual mandate and Obamacare as a whole is unconstitutional.
3. Even if Congress had always intended for the individual mandate to be a tax and not a penalty, the Obamacare bill originated in the Senate. According to the Constitution, tax bills must originate in the House of Representatives.
4. Even if the individual mandate “tax” had originated in the House, it is still constitutionally dubious in that it is a tax for doing nothing rather than a tax for doing something.

“Roberts’ Folly” is likely to haunt the nation in ways similar to the first version of “Roberts’ Folly”—the votes of Justice Owen Roberts in favor of the constitutionality of unemployment insurance and Social Security in Steward Machine Company v. Davis and Helvering v. Davis respectively in 1937. Like unemployment insurance and Social Security, Obamacare is unconstitutional. Alas, all three are forever ingrained in the bloated federal government.