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 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.