Ilya Somin believes the number of times SCOTUS has ruled unanimously against the Obama administration on an issue of executive power says something about the president’s view of the constitution:
The administration’s unanimous defeats in significant constitutional cases cover a wide range of issues, including freedom of religion, property rights, executive power, and the Fourth Amendment. What these otherwise disparate cases have in common is a strong reluctance to accept even modest limits on federal authority.
Some of the complaints reflect the normal back-and-forth of party politics. Democrats charged that the George W. Bush administration seized too much power as well. Almost all of those complaints, however, centered on longstanding differences of opinion over the scope of a president’s Article II powers as commander-in-chief. The Obama administration has advanced broad readings of its power over a wider range of issues, without much in the way of Article II arguments.
The fact that even liberal Supreme Court justices appointed by Democratic presidents — two appointed by Obama himself — have repeatedly ruled that the administration’s positions ran afoul of the Constitution suggests that more than just party politics is at work.
But the questions involving Article II have much more profound implications. The notion that the executive branch has the right in wartime to seize an American citizen and torture him into incoherence strikes me as a more important question than whether someone can have access to free contraception if her employers disapprove. Orin Kerr finds this criticism unfair for another reason:
Ilya has some fun suggesting that Obama was the uniter, in that he personally brought the Justices together with his positions. But at least in the cell phone cases, the arguments likely were crafted mostly by career lawyers who have been in the government for a long time.
The Bush Administration DOJ took the same position back when it existed, at least to the extent that the arguments of DOJ lawyers can be imputed to “the Administration.” And state prosecutors took the same position in their respective state courts and in Riley. It’s the standard position you would expect any prosecutor to take, not something BHO cooked up one afternoon after reading his daily chapter of Saul Alinsky.
More broadly, I think the internal dynamics of the Justices are too contingent to draw easy conclusions from vote counts. Maybe my experience is quirky. But when I was a law clerk, I was struck by how a case that seemed very easy ex ante could somehow emerge 5-4 ex post. And the opposite was true, too: a very hard and close case ex ante could somehow emerge 9-0. The public would assume that the 5-4 cases were close and the 9-0 cases were simple and easy. But at least in my experience, the reality was sometimes far different.
(Photo: Members of the US Supreme Court after US President Barack Obama was sworn-in during the 57th Presidential Inauguration ceremonial swearing-in at the US Capitol on January 21, 2013 in Washington, DC. By Saul Loeb/AFP/Getty Images.)
The Supreme Court ruled Monday that some corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women. The justices’ 5-4 decision is the first time that the high court has ruled that profit-seeking businesses can hold religious views under federal law. And it means the Obama administration must search for a different way of providing free contraception to women who are covered under objecting companies’ health insurance plans.
[Alito] held that this provision of the health care law, as applied to Hobby Lobby, ran afoul of the terms of the Religious Freedom Restoration Act (RFRA), a 1993 law signed by President Bill Clinton which says the government may not “substantially burden a person’s exercise of religion,” unless it has a “compelling” justification and has used “the least restrictive means” available.
“Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained,” Alito continued, “it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.”
Read the full text here. Noah Feldman frames it thus:
The core of the court’s opinion held that the Obama administration had failed to satisfy its burden under the law to show that it had adopted the least-restrictive means to respect religious liberty rights. To get there, the court first had to decide that closely held corporations are entitled to protection under the law. The court broke this into two questions.
The first was whether corporations are persons under RFRA. The court answered this with a resounding yes that extended to all corporations … This analogy between nonprofit and for-profit, however, had already been adopted by the Supreme Court in the Citizens United decision with respect to free-speech, so it’s not terribly surprising that it was adopted in the context of religious liberty.
The second question, however, was whether corporations could be said to hold religious beliefs. Here the court restricted itself to holding that closely held corporations can be said to possess the religious beliefs of their owners. This is not the same thing as holding that all corporations — and certainly not publicly traded corporations — would necessarily have the capacity to possess religious beliefs under federal law or under the U.S. Constitution.
Emma Green has more on that “closely held” distinction, emphasizing that “the most important question here isn’t actually about contraception—it’s about businesses”:
The Court has held that these businesses qualify as “persons,” meaning that they can have religious beliefs.
It’s worth noting that this ruling only applies to closely held private companies, or businesses that are owned by a small number of people who are mostly involved in the day-to-day operations of that business. Roughly 90 percent of American companies qualify as closely held, so this ruling will apply to a pretty sizable portion of the American business community. But it won’t affect coverage requirements for publicly held companies, which include large companies traded on the stock market—as Kevin Russell over at SCOTUSblog writes, the Court is “leaving for another day whether larger, publicly traded corporations have religious beliefs.”
In the end, a closely held corporation is really nothing more than a partnership with tax advantages. What ever you might call it, it is still a business that is owned by a small amount of people. If Hobby Lobby were a partnership or sole proprietorship, there would be no question that the Greens [the Hobby Lobby owners] would be within their rights to assert a religious objection under the RFRA. Given that, it doesn’t strike me as being all that radical to say that they retain those rights when they enter into a different kind of business form that, ultimately, was chosen so that they could expand the company to the national operation employing thousands of people that it is today. We are still talking ultimately about the individuals who own the company and their rights, which is why this decision would not make any sense if you applied it to a publicly traded corporation owned by tens of thousands of individuals and institutions like Apple, or Exxon Mobil.
Meanwhile, Jason Millman clears up a common misconception:
The administration and supporters of the contraception mandate had warned that a broader recognition of corporations’ individual rights could enable more business owners to claim religious exclusions for other health-care services, such as blood transfusions or vaccinations, and civil-rights protections. The court today said its ruling narrowly applies to just the contraception requirement.
Hobby Lobby doesn’t object to providing contraception; it objects to contraceptives that may act as abortifacients. (Donna Harrison provided some background information on this issue for NRO.) And the mandate isn’t in Obamacare. Even the very liberal Congress of 2009-10 never explicitly decided, or even really debated whether, to force companies to provide contraceptive coverage. HHS used the authority the law gave it to impose the mandate. Several pro-life Democrats who provided the law’s narrow margin of victory in the House have said they would have voted against the law had it included the mandate.
Kate Pickert specifies that line over contraception drawn by Hobby Lobby, whose “individual position is less extreme than many believe”:
The company objects to paying for morning-after pills and inter-uterine devices, but freely provides insurance that covers tubal ligation, birth control pills, condoms, diaphragms and contraception delivered via a patch or ring inserted into the cervix. More than 80% of all contraception users in the U.S. rely on these methods.
There will be a lot of liberal fulmination today about an activist right-wing Supreme Court and impending theocracy. Just remember: 1) If Congress wants to require all employers to cover birth control, it can pass a new law that explicitly exempts itself from the Religious Freedom Restoration Act. This ruling wouldn’t be an obstacle to such a law.
In her dissent, Justice Ginsburg bristles at the majority’s “decision of startling breadth.” Justice Kennedy tries to argue otherwise in his concurring opinion, arguing that the majority opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” And yet majority opinion held that corporations are “persons” under the Religious Freedom Restoration Act! That’s huge! While the court limits part of its ruling around the contraception mandate to closely held corporations (defined by the IRS here), the essence of the decision is a profound and radical shift in corporate rights.
Further, the ruling in part eroded the distinction between religious non-profits (which were already exempted from parts of Obamacare) and private corporations. If you think going to the mall is like going to church, that makes sense. To everyone else, it’s nuts.
[She] called the majority opinion “a decision of startling breadth.” Ginsburg read a portion of her decision from the bench on Monday. Addressing the majority of her colleagues — including all but one of the six men sitting on the Supreme Court — Ginsburg wrote:
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
The justice goes on to criticize the opinion’s interpretation of the religious freedom law, writing that “until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world.'”
The reason why is hardly obscure. 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. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations…The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.
“In sum,” Ginsburg adds about the free exercise claims at the heart of this case,“‘[y]our right to swing your arms ends just where the other man’s nose begins.’”
What will this mean for women in the immediate future? Probably not much:
It is extremely likely that the Obama administration will by regulation provide for the government to pay for the [contraception] coverage. So it is unlikely that there will be a substantial gap in coverage.
“The New Testament never — not one time — applies the “Christian” label to a business or even a government. 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. Journalists or cultural commentators might use the phrase “Christian business” in colloquial or cultural terms, but conservative evangelicals must admit that the term makes no theological sense for them given their views of salvation, sanctification, and revelation,” – Jonathan Merritt.
By using the inherited clout and expertise of the Greater Israel Lobby to get Congress to torpedo it, after the fact:
The plan, obtained by Foreign Policy, calls on Congress to oppose the lifting of financial sanctions on Iran until it proves that its entire financial sector, including the Central Bank of Iran, has sworn off support for terrorism, money-laundering, and proliferation. Some of those topics haven’t been part of the ongoing U.S.-led talks with Tehran, which means that linking sanctions relief to those conditions after a deal is made would likely drive the Iranians off the wall, say experts. Tehran would likely see any such measures as moving the goalposts and as evidence that the United States wasn’t genuinely interested in backing up its end of the deal.
And that removes the last barrier to the neocons’ next war in the Middle East (if they haven’t managed to launch another one in Iraq before them).
Remember the EU trade agreement that set off the Maidan protests in Ukraine when former president Viktor Yanukovych turned it down six months ago? Well, his successor Petro Poroshenko signed it on Friday, effectively snookering Putin and raising anxieties about how Moscow might respond. Bershidsky considers what effect the deal will have on Russia:
In a document meant to dispel myths about the association agreement, the European Commission stressed that “there is nothing in the Agreement which will affect trade with any other trade partner of Ukraine, including Russia. Therefore no negative economic effects regarding trade with other trade partners of Ukraine can be expected as a result of the Agreement itself. Threats by Russia to raise its tariffs if Ukraine signs the Agreement are not based on economic reasoning”.
That isn’t strictly true. Russia and Ukraine already have a free trade agreement, signed under the auspices of the post-Soviet Commonwealth of Independent States. What scares Russia about Ukraine’s EU deal is the possibility that duty-free EU goods, passed off as Ukrainian ones, will flood the Russian market.
Steven Pifer worries that Putin may react more aggressively than he’s letting on:
Can Moscow now reconcile itself to the association agreement? A Russian deputy foreign minister warned of “serious consequences” but conceded that signing such a document was “a sovereign right of any state.” Mr. Putin’s spokesman said Moscow would take steps to avoid any negative impact on the Russian economy.
To be sure, Russia has legitimate interests at stake. Kyiv appears ready for a dialogue on minimizing the impact of the association agreement on Ukrainian-Russian trade. But will that satisfy Moscow? That is a key question. Russia has significant influence over the armed separatists in Donetsk and Luhansk, many of whom are Russian citizens, and has other leverage over Ukraine. Russia can use that influence and leverage to promote a ceasefire and a settlement, if it wants to. If Moscow instead chooses to continue its efforts to destabilize Ukraine, that will immensely complicate implementation of the Ukraine-EU association agreement.
And on the same day that Poroshenko signed the deal, Russia’s gas conglomerate threatened to reduce natural gas supplies to any European countries that try to re-export it to Ukraine:
In remarks to reporters, Alexei Miller, the CEO of Gazprom, spoke out against European contemplation of a maneuver called “reverse-flow supply”—taking Russian gas exported to Europe and re-delivering it to Ukraine. If successful, the stratagem would reduce Moscow’s ability to pressure Ukraine to pay a disputed $4.5-billion gas debt. “A reverse flow is a semi-fraudulent mechanism whereby gas runs in circles,” Miller said. “This is Russian gas.”
Ukraine already receives gas this way from Germany, which delivers it via Poland. And Slovakia has agreed to reverse-flow a small volume to Ukraine as well, starting in October. On June 25, Gunther Oettinger, the European Union’s energy commissioner, explored the idea of significantly enlarging the plan to effectively take care of all of Ukraine’s gas imports.
Putin is not as smart as he’d like us to think. I like to think of him as Cheney-smart.
Using data from the Centers for Disease Control, [researchers at the Rollins School of Public Health at Emory University, working with Gilead Sciences] developed online, interactive maps depicting where AIDS infections were most prevalent—and where new cases were cropping up most frequently. They called the project AIDSVu. Its principal researcher is Patrick Sullivan, an epidemiologist who worked at the CDC before coming to Emory. … The South has just 37 percent of the country’s population, Sullivan notes. But it has nearly 50 percent of the new HIV diagnoses.
IS announced Sunday it was establishing a “caliphate” — an Islamic form of government last seen under the Ottoman Empire — extending now from Aleppo in northern Syria to Diyala province in eastern Iraq, the regions where it has fought against the regimes in power. In an audio recording distributed online, the group declared its chief Abu Bakr al-Baghdadi “the caliph” and “leader for Muslims everywhere”. Henceforth, the group said, he is to be known as “Caliph Ibrahim” — a reference to his real name.
Though the move may not have immediate significant impact on the ground, it is an indicator of the group’s confidence and marks a move against Al-Qaeda — from which it broke away — in particular, analysts say. The caliphate is “the biggest development in international jihad since September 11”, said Charles Lister of the Brookings Institution in Doha, referring to the Al-Qaeda attacks on the United States in 2001.
The pronouncement of the caliphate is sure to be wildly controversial on religious grounds, but ultimately it could cut either way.
The backlash may harden the pro-AQ segment of the global jihadist movement against ISIS, especially with the announcement’s flat-out demand that all other jihadist groups are religiously obligated to pledge loyalty to ISIS. But it will also generate some enthusiasm from foot soldiers and different segments of the global movement that see ISIS as a rising star. …
On the other hand, Muslims worldwide are likely, on the whole, to react negatively to the pronouncement. The question here is how many currently nonviolent radicals will jump toward ISIS and how many will jump away from it. Again, this is a high-risk, high-reward scenario for ISIS. It could reap considerable benefits, but the backlash could be severe.
Juan Cole ridicules the announcement, pointing out that the abolition of the caliphate 90 years ago has meant precisely nothing to the vast majority of the world’s Muslims, who aren’t likely to care any more for “Caliph Ibrahim” than for Abu Bakr al-Baghdadi:
The Egyptian Muslim Brotherhood developed the institution of the Supreme Guide, which under President Muhammad Morsi in 2012-2013 developed theocratic aspirations. The Supreme Guide, Muhammad Badie, proved conspiratorial and controlling, and Morsi proved compliant. The vast majority of Egyptians were annoyed by this grandiosity, and they overthrew the Muslim Brotherhood government. Badie is in danger of being executed. I think that the Egyptian elite has gone too far in persecuting Muslim Brothers and branding them terrorists, mind you, and the death sentence on Badie is a human rights violation. But I’m just pointing out that calling yourself Supreme Guide and getting the loyalty of a sectarian group is no guarantee of worldly success. And the Brotherhood is way more important the the ‘Islamic State.’
This Baghdadi ‘caliphate’ thing is doomed, as well.
Morrissey is also dismissive, but he sees a strategic purpose:
At any rate, the declaration of the caliphate has less to do with statehood or global leadership than it does with local competitors. Zawahiri may get annoyed, but he’s not really the main target of this declaration. It’s meant to warn competing militias in the areas ISIS already controls that either they’re with Baghdadi, or they’re against him. ISIS wants no competition in arms inside of their existing footprint or adjacent to it, and will target any other networks that don’t fall in line. That’s where the infighting will occur.
Charles Lister, on the other hand, thinks it’s a pretty big deal:
The impact of this announcement will be global as al-Qaida affiliates and independent jihadist groups must now definitively choose to support and join the Islamic State or to oppose it. The Islamic State’s announcement made it clear that it would perceive any group that failed to pledge allegiance an enemy of Islam. Already, this new Islamic State has received statements of support and opposition from jihadist factions in Syria – this period of judgment is extremely important and will likely continue for some time to come. …
Geographically, ISIS is already fully operational in Iraq and Syria; it has a covert presence in southern Turkey, appears to be establishing a small presence in Lebanon; and has supporters in Jordan, Gaza, the Sinai, Indonesia, Saudi Arabia and elsewhere. This could well be the birth of a totally new era of transnational jihadism.
You asked, “Are Democratic gay candidates still in a defensive crouch at this point [about touting their marriages in campaign ads]?” This email came from my Democratic congressman, Sean Patrick Maloney, a few hours ago:
Well Jonathan, I’m a married man [as of Saturday, June 21]! So I bet you’re thinking: shouldn’t you be on your honeymoon and NOT emailing me? I probably should be, yes. But I’m back at work because there’s a battle I can’t ignore right now.
Jonathan, my wedding is a testament to the progress we’ve fought so hard to achieve and I refuse to see that progress erased.
Not for other LGBT men and women who want to marry their partner. Not for my children who deserve to live in a country defined by equality and opportunity.
There are a lot of people – with a lot of money – who hate our values and want to destroy the gains we’ve made. That’s why Randy and I agreed that I need to get back to work; the honeymoon has to wait.
The NY primary is tomorrow and the biggest FEC public filing deadline is seven days away. I wouldn’t be asking – in fact, I wouldn’t be here today – if this weren’t so important. Please donate whatever you can to my campaign before midnight tomorrow by using this link. It would be a huge help and since I can’t spend these next few days with my husband, I might as well make it worth it and beat these guys coming after me.
Thanks again and we’ll send pictures along ASAP!
Sean
P.S. Now that the wedding is over I can admit it – yes, I was a little nervous…no, I don’t feel any different!
Matt Wilstein almost missed that recent tweet from the former half-term governor:
Perhaps Palin forgot what it was like to be the subject of a similar investigation exactly three years earlier after her office released her emails to the press.
On June 13, 2011, the Anchorage Daily News reported that “Nearly a month of former Gov. Sarah Palin’s emails are missing from the documents released to media organizations last week, a gap that raises questions about what other emails might also be missing from what’s being nationally reported as her record as Alaska governor.”
According to the documents Palin’s office provided, she sent no official emails from between December 8, 2006 and December 29, 2006, in other words her first full month in office. As the paper put it, “That means zero emails during a period during which, among other things, Palin put out her proposed state budget, appointed an attorney general, killed the contract for a road out of Juneau and vetoed a bill that sought to block state public employee benefits to same-sex couples.”
The Anchorage Daily News argued that the gap was due to Palin’s preponderance to use a personal Yahoo email account instead of the official state account, thereby allowing her to hide certain communication from public view. The first email Palin was on record as sending came on January 2, 2007, one month after she took office.
The Dish 