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.

Campaign Finance and the First Amendment: Why Justice Thomas Was Right

by Gerard Emershaw

Recently in McCutcheon v. FEC, the Supreme Court voted 5–4 along ideological lines to overturn a campaign finance law which limited the amount that an individual could donate in a two-year election cycle to a total of $48,600 to candidates and $74,600 to political action committees. However, the Court ruled that the legal imposed limit of $5,200 to any individual candidate—$2,600 for primary election and another $2,600 for general election—was constitutionally valid.

In his concurring opinion, Justice Clarence Thomas argued that the Court should have also ruled this $5,200 limit on donations to any one individual candidate unconstitutional. Justice Thomas was correct.

The rationale for limits on how much an individual may donate to a single federal political candidate can be found in Buckley v. Valeo (1976). In that case, the Court ruled that the limiting of political donations that individuals can make to a candidate is a justified limitation of First Amendment rights for the following reason:

Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.  

Justice Thomas focuses mainly on issues related to the First Amendment and the appropriate standard of review that should be imposed upon campaign contributions. Justice Thomas objects to the view in the Buckley ruling which stated that “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution,” and “[a]t most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. Instead, Justice Thomas claims that campaign contributions do increase the quantity of communication by allowing the candidate in question to amplify his or her voice. He also claims that larger contributions express the level of approval a donor has for the candidate in question. Justice Thomas also objects to the practice of limiting contributions but not limiting direct expenditures by a candidate because the two are just “two sides of the same First Amendment coin.”

What Justice Thomas does not discuss is the aforementioned worry about corruption. Without doubt if donors were allowed to give unlimited contributions, it would increase the worry that such a donor could “own” a candidate by having that candidate “in his [or her] pocket.” However, on the other side of that is the First Amendment which states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

While the Court far too often allows other considerations to outweigh free speech, they are wrong in doing so. The First Amendment says “no law.” It does not qualify this by saying “unless the government has a more important objective which outweighs the value of free speech.”

The real problem is this. The government has grown far beyond its Constitutional boundaries. The President is akin to a Caesar. The executive branch agencies do most of the true legislating in violation of Article I of the Constitution. Congress has surrendered most of its power to the executive branch, but it uses the Commerce Clause to do the bidding of its corporatist campaign contributors. So, how does Congress and the Supreme Court address all this unconstitutionality? By violating the Constitution once again by limiting free speech. This is wrong. Two wrongs do not make a right. This is a political version of swallowing the spider to catch the fly. The real question is why does the Court keep allowing the federal government to swallow that fly?

A Constitution-sized government is not a powerful government. The President as defined in the Constitution is no Caesar. The executive branch is not a one-headed legislator with a multitude of tentacles. Congress is very limited in what it can do. The Tenth Amendment further limits the power of the federal government. A Constitution-sized government has elected civil servants who do not have enough power to be worth buying. Even if they did, there is nothing preventing the people from amending the Constitution to enact term limits for members of Congress as was earlier done with the President. It would not even be impossible to further limit the President to merely one term if necessary. This would further the amount of time that elected federal civil servants could accept anything akin to bribes. The bottom line is that unless and until the people limit the power of the federal government to what is stated explicitly in the Constitution, bribery and corruption will be the rule rather than the exception regardless of any campaign contribution limits. There will always be ways around those.

Scalia Is No Friend of the Right to Privacy

by Gerard Emershaw

The flood of shocking revelations about the NSA resulting from the whistleblowing of Edward Snowden will inevitably land issues concerning the surveillance state, national security, the Fourth Amendment, and the right to privacy before the Supreme Court. With the current makeup of the court, this does not bode well for civil liberties. Earlier this year, in Clapper v. Amnesty International, the Supreme Court held that the plaintiffs in the case could not challenge the NSA’s warrantless wiretapping because they lacked standing. They lacked standing because they could not show that they were harmed by the program. However, the proof that a plaintiff would need to show that he or she is affected and harmed by the NSA program is classified. Therefore, as long as the NSA keeps this information secret, it is impossible for anyone to sue. This alone is enough to signal to civil libertarians that any NSA case decided in the near future is not going to end well. But, it appears that the prospects for the right to privacy may be even worse.

Justice Antonin Scalia recently spoke before the Northern Virginia Technology Council and told them that he believed the Court would soon be hearing cases connected with the NSA. Justice Scalia appears to be less than thrilled about having to hear such cases. He believes that elected branches of government are better equipped to deal with such issues. However, the Supreme Court opted, beginning in the 1960s, to expand its power in hearing cases concerning the right to privacy. According to Justice Scalia, this was not wise:

The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed.

Justice Scalia told his audience that prior to cases like Katz v. United States (1967), the Court held that there were no constitutional constraints on wiretaps because the Court believed that the Fourth Amendment did not apply in such cases and gave no protection at all to conversations. Justice Scalia then lamented the fact that the Warren Court stepped in on the issue and explained that the Warren Court found that “there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.” This does not sound like a jurist who believes in the right to privacy.

The landmark case that established the constitutional right to privacy is Griswold v. Connecticut (1965). In this case, the Supreme Court ruled that a Connecticut law outlawing contraceptives was unconstitutional. In William O. Douglas’s majority opinion, he speaks of why the constitutional right to privacy was recognized:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Scalia, obviously, is unimpressed by this. However, despite his ingenuity, Justice Douglas could have stopped after a quick discussion of the Ninth Amendment. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, just because a natural right is not specifically enumerated in the Constitution, it does not mean that the people do not possess that right in virtue of their humanity.

One source of evidence concerning the existence of a natural right to privacy is tort law. In 1960, legal scholar William L. Prosser documented the right to receive damages under the common law for invasions of privacy. Four distinct privacy torts have developed: 

1. Intrusion upon seclusion or solitude, or into private affairs;

2. Public disclosure of embarrassing private facts;

3. Publicity which places a person in a false light in the public eye; and

4. Appropriation of name or likeness.

This provides strong support for the existence of a right to privacy. If an individual can exert this right against his or her fellow civilians, then he or she should also be able to exert these rights against the government.

Furthermore, the aspects of the right to privacy which concern wiretaps and other advanced technological forms of electronic intrusion used by the NSA, FBI, etc., are fully encompassed by the Fourth Amendment. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the Founders did not contemplate things such as wiretaps and other surveillance telephone lines, cellphones, the internet, etc., they did institute the requirement that a search cannot take place without a specific judicial warrant issued upon probable cause. While the Supreme Court has disputed this in recent decades, this is simply an indication that they are either not careful readers or they simply wish to create constitutional law that does not exist.

When a person is in a place of privacy and has a conversation with a companion—whether this is a face-to-face conversation or an electronic conversation via a phone or the internet—the content of that conversation is akin to his or her person. The words—whether spoken into the air, spoken into a telephone, or typed—are inseparable from the person in that searching the words is akin to searching the speaker of the words. Therefore, since persons are protected by the Fourth Amendment, so are conversations. Furthermore, modern forms of communication such as phone calls, text messages, e-mail, and instant messages are secondarily covered by the Fourth Amendment because they can only be achieved through the use of telephones, cellphones, or computers. These items are clearly “effects”—movable belongings. Given that the Fourth Amendment guarantees the protection of persons and effects, private conversations of all types are clearly protected. Unfortunately, this is not the way that Justice Scalia and a likely majority of his colleagues will see it.

What to Expect from Obama's Second Term (Part Four)

More Progressive Justices on SCOTUS

Barack Obama’s re-election will likely give him the opportunity to reshape the Supreme Court. Conservative Justices Antonin Scalia and Anthony Kennedy are 77 years old and 76 years old while Progressive Justices Ruth Bader Ginsburg and Stephen Breyer are 79 years old and 74 years old. While Justice Oliver Wendell Holmes and Justice John Paul Stevens both retired at age 90, the average retirement age of a Supreme Court Justice is 78.7.

It is plausible that Justices Ginsburg and Breyer will retire during Obama’s second term in order to enable him to appoint younger Justices to join 58 year-old Sonia Sotomayor and 52 year-old Elena Kagan as a young cadre of Progressive Justices. There is a long precedent of Justices retiring during the administration of a like minded president. It is also plausible that Antonin Scalia and/or Anthony Kennedy may retire from the court given their advanced ages.

The Roberts Court has been famously divided among ideological lines. The Roberts Court has had 22% of its cases decided by a 5 to 4 margin. Retirement by either Justice Scalia or Justice Kennedy would tip the balance of the Supreme Court in the favor of the Progressive Justices. While many social conservatives will lament the fact that this would make it incredibly unlikely for it to slay their white whale – Roe v. Wade – the repercussions of a Progressive majority in the Supreme Court would have would be far more wide ranging than that.

The most “clear and present danger” of a Progressive majority in the Supreme Court would be the interpretation of the Commerce Clause. Lost in the controversial NationalFederation of Independent Business v. Sebelius – “Obamacare” – Supreme Court decision was Justice Roberts siding with the other Conservative Justices in claiming that the individual mandate of “Obamacare” lay outside of the Commerce Clause power of Congress because it involved penalizing economic inactivity rather than regulating economic activity. If another Progressive Justice was to join the Supreme Court and provide a Progressive majority, the Commerce Clause would likely be viewed as having no practical limit. There will be no facet of American life that the Supreme Court will not allow Congress to regulate under the Commerce Clause. If there is any doubt about this, then consider the exchange between Senator Tom Coburn and Elena Kagan at Kagan’s confirmation hearing. When asked by Senator Coburn whether Congress could enact a law requiring all Americans to eat three vegetables and three fruits everyday, Kagan replied that while she thought such a law would be dumb, there is a difference between striking down a law for being dumb and striking down a law as unconstitutional. In other words, the Progressive wing of the Supreme Court likely believes that it would be constitutional for Congress to regulate the eating habits of American citizens. A further broadening of the scope of the Commerce Clause would render the limits of Congressional power null and void. Congress would no longer be bound – even in theory – by its list of enumerated powers in the Constitution. This, of course, would effectively put the last nail in the coffin of the Tenth Amendment and states’ rights.