The Rule of Lawyers

by Dave Schuler on July 5, 2014

Over the last week or so I have read an enormous amount of (mostly hyperventilating) commentary about the Supreme Court’s decision in the Hobby Lobby case. In all of the verbiage I have not encountered an explanation of how you’d arrive at any other decision without setting aside black letter law. Here’s the relevant language of the Religious Freedom Restoration Act:

SEC. 3. FREE EXERCISE OF RELIGION PROTECTED.

(a) IN GENERAL. — Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) EXCEPTION. — Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) JUDICIAL RELIEF. — A person whose religious exercise has been substantially burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

and here’s the relevant language of the “Dictionary Act”, the federal statute that governs how words are used in federal law:

…the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;…

I suppose one might argue that either RFRA or the Dictionary Act were unconstitutional. I haven’t read any but the most half-hearted attempts at doing that, mostly suggesting that the argument could be made without making it. I would welcome being directed to such an argument. My suspicion, however, is that opponents of the decision object to it on policy grounds rather than legal ones and were hoping that the Court would carry the water for the Obama Administration and find some pretext for affirming a regulation that goes beyond what was enacted into law.

Which brings me to Michael Barone’s most recent column. In the column Mr. Barone deconstructs the Obama Administration’s actions in light of its Supreme Court losses, especially the cases in which it’s been defeated unanimously. He sees the administration as hostile to religion:

One thing is abundantly clear, namely that this administration has a crabbed view of the First Amendment right of free exercise of religion. That is apparent not only in June’s 5-4 decision ruling in Burwell v. Hobby Lobby that the Obamacare contraception mandate is trumped by the Religious Freedom Restoration Act.

It’s even clearer in the 2012 Hosanna-Tabor Church v. EEOC case, in which the Court unanimously said that churches have the right to select their own clergy. The administration’s position, that government could decide who counts as clergy, was described as “amazing” by Justice (and former Obama solicitor general) Elena Kagan.

freedom of speech:

The First Amendment freedom of speech is not highly valued by the administration either. In McCullen v. Coakley, decided last month, all nine justices overturned the Massachusetts law, supported by the administration, outlawing protests within 35 feet of an abortion clinic.

property rights:

Property rights are also disfavored by the Obama administration. A unanimous court said the Fifth Amendment requires compensation when the government repeatedly floods its land in Arkansas Game & Fish Commission v. U.S. in 2012.

That year, the court in Sackett v. EPA also unanimously ruled that landowners could sue without risking a $75,000 per day fine to challenge a government order blocking construction in a supposed wetland.

And in 2013, the court in Horne v. USDA ruled that raisin farmers could sue for damages from confiscation of hundreds of pounds of raisins without first paying a $483,000 fine.

and the Fourth Amendment’s protections against unreasonable search and seizure:

Nor is the Obama administration particularly respectful of the Fourth Amendment prohibition of unreasonable searches and seizures. In 2012, a unanimous Court in U.S. v. Jones rejected its contention that the government could attach a GPS tracking device to a car without a warrant.

That was followed by last month’s Riley v. California, in which a unanimous Court rejected the position, supported by the Obama Justice Department, that police could search without a warrant the cellphone of a person under arrest. Chief Justice John Roberts pointed out that smartphones contain much more personal information than the crumpled cigarette package whose seizure the Court upheld in 1973.

A unanimous Supreme Court has also rejected Obama administration prosecutions that went beyond the letter of the law, including double taxation of a firm that paid foreign tax (PPL Corp. v. IRS, 2012), an extension of the statute of limitation against securities fraud (Gabelli v. SEC, 2012) and the “boundless reading” (in Chief Justice Roberts’ words) of a statute implementing the Chemical Weapons Treaty to prosecute a woman who sprayed toxic chemicals on objects likely to be touched by her husband’s paramour (Bond v. US, 2014).

I disagree. I don’t believe that the Obama Administration has any particular aversion to freedom of religion or speech or private property or freedom from unreasonable searches and seizures. I think the administration’s position has a very different source and it’s one I’ve been trying to explain for some time.

I think it’s a difference of opinion over just what “the rule of law” means. There are some people who believe the written law, augmented by precedent and the common law, constitutes the whole of the law. There are others who believe in what I what term “the rule of lawyers”.

Under that rubric you identify your political or policy objectives, impose a regulation that implements them, craft a legal argument to support the regulation, and shop around for a friendly judge who’ll affirm it for you.

I don’t think that’s what most of us think of as the rule or law but I think it’s the operating principle behind a lot of the administration’s actions. Implement the policy, heedless of the law, and fill in the rest later. And it’s equally clear that many of the president’s supporters hail that approach.

My own view is that, if you can’t get the votes to pass the laws you want or repeal the laws you don’t want, don’t rely on compliant judges to do your work for you. That can cut both ways.

{ 10 comments… read them below or add one }

.... July 5, 2014 at 9:39 am

Look, it was all over once the Supreme Court realized that they could make up any shit they wanted and make it stick, back with Roe v. Wade, if not sooner. It _IS_ a government of lawyers, and has been for some time.

Jimbino July 5, 2014 at 10:22 am

I, like the Amish and others, have a “religious” objection to insuring myself–whether health insurance or any other that does not cover liability to others. Though I’m an atheist, the current rule is that atheists are covered by the RFRA so long as theirs is a philosophy that occupies a place in their lives equivalent to the belief system of a religious person.

It seems clear to me that, according to Hobby Lobby, the court will have to find:

1. My atheist philosophy qualifies for RFRA protection.
2. The gummint has no “compelling interest” in forcing me to buy health insurance, especially since the Amish are exempt.
3. Even if the gummint could show a “compelling interest,” Obamacare is not the “least restrictive means,” considering that there are a myriad of other options, such as catastrophic coverage, medical tourism, etc.

jan July 5, 2014 at 11:09 am

Sometimes even the phrase “rule of law” seems a farce. Sure, so-called ‘laws’ guide the conduct of people, hopefully leading them away from being uncivilized to civilized. But, laws can also be disturbingly myopic, biased, unfairly implemented, weaken society rather than strengthen it, by distorting the good and augmenting debased qualities readily consumed by a more submissive, dismissive culture.

All people, in the meantime, are at the mercy of laws. They must follow them or suffer ill-fated consequences issued by officials representing legal arms of the law. And, the more laws you generate and encumber a people with — layering laws upon other laws — the more there is a transference of power from ordinary citizens to what is becoming an elite hierarchy of lawmakers, law enforcers, aided and abetted by the disintegration of privacy rights, as governmental intrusion becomes more accepted as the law of the land.

To me that’s troubling, especially in lieu of how dishonest and oppressive some of these almost untouchable bureaucratic stooges of the law have become.

steve July 5, 2014 at 12:49 pm

You are mixing up the Court cases and the recent policies he has implemented. First, I think the unanimous thing is pretty meaningless. I understand that this is an important meme that the right wants to push, but I think it a talking point not worth considering.

As to not getting votes for laws you want, I agree. Which law did Obama pass w/o votes? I think the EPA rule was the most egregious, but not really sure it was a new law. Of course even there, the Court overturned part of its own decision only 7 years earlier.

Last of all, of course we have rule by lawyers. When has it not been true for most of our country (and many others)? Even Shakespeare knew this.

Steve

Dave Schuler July 5, 2014 at 3:45 pm

Go back and look at Mr. Barone’s list again. Nearly everything in that list is regulatory rather than statutory. In other words, the Obama Administration is making up laws that go beyond what was enacted, go beyond what is “necessary and proper” for enforcement, and, presumaby, they don’t have the votes to pass if they’d wanted to go the legislative route.

And we are more burdened with lawyers than any other major developed country. I’ve posted on this before. The legislatures in the UK, Germany, France, and Italy aren’t packed with lawyers. Not only do they have better representation but their legislatures have a much greater diversity of backgrounds than ours. And ages, for that matter. Our Congress is like one big House of Lords.

mike shupp July 6, 2014 at 1:43 am

Let’s see … The Obama administration is now accused of violating the First Amendment, the Second, the Fourth, the Fifth, no doubt the Sixth and Seventh and possibly the Eight, and certainly the Ninth and Tenth. What’s left? Unlawfully stationing troops in private houses?

Oh please please pretty please! We haven’t had a nice scandalous Third Amendment case since … the 1700′s maybe.

And what else? Does Obama cheat at numbly-peg? Or sneak an unconstitutional peek during hide-and-seek during recesses?

Hmmm. I don’t take all alleged violations of the law quite as seriously as you. I’ll happily agree Administration lawyers have overreached themselves in several instances, usually by assuming the parties they’ve charged with violating laws or regulations are guilty and that large fines should be paid far before courts have ruled, and that this ought to be slapped down — as seems to have happened. Other hand … that’s the path the entire American legal system has raced down during my lifetime, with the lawyers shouting out Indian war-whoops all the while, thoroughly enjoing themselves, whether Republican or Democrat.

Watch what happens if the boys in the local cop shop decide anybody driving a nice new expensive car like yours must be Up To No Good and it ought to be impounded just on suspicion. You’ll be out of a car within minutes, no matter what a court decides in another year or two. Because that’s the American Way, boss, and the cops have to have money for their ever-so-necessary anti-drug work, and who but a drug-dealing slimeball would disagree?

So, sin didn’t begin with Obama.

Moving on, I’ll tell you what strikes me about the Religious Freedom Restoration Act: Section 3B(2) (“the least restrictive means of furthering that compelling governmental interest”)
is so vague as to be meaningless. Let’s consider: virtually everyone and his brother who thinks about the mechanics of providing healthcare for the entire country quickly comes to the conclusion that a single-payer (i.e., tax-supported) system is simpler and likely cheaper than any alternative. So, if we’re going to get an all encompassing healthcare system in this country, that’s the way to go. That’s what satisfies 3B(2), and nothing else. And we all know a single payer system isn’t politically possible, because passing such a law would turn every Republican in the country into a fire-breathing “Death to Socialists!” screaming kamikaze. So we’ve got Obamacare, an inferior healthcare substitute, because that’s the best we can do with our political system.

And I have to say, it strikes healthcare actually IS a “compelling government interest”, and it isn’t going to tear the nation down any more than healthcare programs in Canada or Great Britain or France or Scandinavia, and if it makes a batch of Evangelical Christians unhappy because it conflicts with the things Jesus and Moses clearly said about IUDs and measles vaccinations, then that’s just too damned bad, and this is why we have a First Amendment which keeps religion out of government, so tough.

So. I’m not a lawyer. Take this up with Doug Mataconis, perhaps, at OTB, who has voiced some reservations about the RFRA . But to me the law looks overly broad and vague, and I’m not convinced it ever had any real purpose other than to be a feel-good measure to give warm fuzzies to religious voters. Of which I’m not one.

Dave Schuler July 6, 2014 at 6:18 am

Hmmm. I don’t take all alleged violations of the law quite as seriously as you.

Nothing “alleged” about them. Every single Supreme Court defeat for the Obama Administration represents multiple violations of the law by them. The decisions are determinations that the law was broken.

Dave Schuler July 6, 2014 at 6:33 am

What’s left? Unlawfully stationing troops in private houses?

In a bizarre turn of events, they’ve been accused of just that in the form of surreptitiously installing data-collecting malware on phones and computers.

TastyBits July 6, 2014 at 9:31 am

@mike shupp

… So we’ve got Obamacare, an inferior healthcare substitute, because that’s the best we can do with our political system.

Obamacare is exactly what the Democrats wanted.

Zachriel July 6, 2014 at 11:31 am

…the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;…

It’s doubtful Congress intended to include corporations, but even then, corporations can’t be said to have religion, even if their majority stockholders have religion. The decision, combined with serious dysfunction in the legislature, will have many unintended consequences.

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