Monday, June 30, 2014
A Sheep In Wolf's Clothing: The Supreme Court Runs And Hides
The Roberts Supreme Court issued two decisions today that are essentially sheep in wolf's clothing. That is, they are intended to look like originalist decisions that support the Constitution, but they are so hedged and nuanced as to be almost meaningless.
One of the cases, Burwell v. Hobby Lobby is fairly well known. The issue here was whether the Obama Administration could require a corporation or other institution ( such as a Catholic University) to include abortificants and other contraceptive items required by ObamaCare in violation of its religious principles.
The other was Harris v. Quinn, where the matter in question was whether home health care workers, many of whom take care of disabled relatives are required to kick in an 'agency fee' for negotiating pay and benefits to public employee unions even if the workers involved are not members of the union and do not want to join or support the union.
Let's look at Harris vs. Quinn first, which was PR'ed as a 'death blow' to public employee unions. Nothing could be further from the truth. What the Court did here was to rule so narrowly that it avoided the essential issue.
Pamela Harris gets paid to take care of her developmentally disabled son in Illinois, which made a deal with the SEIU as the union of choice to collect those 'fees'. She challenged the state's right to designate a union of public employees as their sole representative.
In a 1977 ruling, Abood v. Detroit Board of Education, the Court ruled that public employee Unions could collect such fees but not use them for political activities, although pro-labor politicians made sure that there was little or no oversight to give it any teeth.
The argument for Ms. Harris was a simple First Amendment one - whether the compulsory fees violated her right of free speech, since the State of Illinois was in essence forcing her to support an organization, the SEIU, whose politics she disagreed with.
That was the essential issue, and anyone who understands the Constitution knows that compelling someone to support politics they disagree with - say, spending $40 million dollars to get Barack Obama elected president-as a condition of employment violates their First Amendment rights.
Yet so ingrained is the Ponzi scheme by which the Democratic party funds itself through forced contributions from public employee union paychecks paid for by the public and then 'negotiates' pay and benefits with the very people that put them in office that she actually lost in a couple of th elower courts and had to appeal.
The Court sidestepped that by ruling that only home care workers were exempted and noting in the decision that prior rulings legalizing this enforced levy from workers and from taxpayers could continue. The obvious question no one's asking is that if Ms. Harris' rights were deemed violated, aren't the rights of a janitor or a clerk's who likewise has to kick in to support the union's political agenda? This was a chance for a sweeping ruling that would have defended the First Amendment the Court deliberately avoided. Since it was 5-4, I suspect Chief Justice John Robert's hand in this.
At best, this may be a precedent to take down public employee unions like the SEIU and AFSCME and end their racket at a later date.
Burwell v. Hobby Lobby was an even bigger example of deliberately avoiding the defense of a clear constitutional principle.
The Court never even bothered to go near the main argument, the fact that by requiring Hobby Lobby to provide abortificants and contraceptives as part of the ObamaCare mandate the free practice clause of the First Amendment was being urinated on. Instead, they again narrowed down their ruling to the point that it was meaningless. First, they limited the things Hobby Lobby need not pay for to three specific abortificants, most notably the morning after pill. Upon ''certifying that it opposes contraceptive coverage', the insurance company involved is required to provide these items 'for free', which of course means that Hobby Lobby will still be paying for them because they will be figured into the premium the insurance company charges them!
What we're talking about is an average cost for these items of around $9 a month over the counter - without any insurance offset.
What everyone seems to want to avoid is that contraception, like sex itself, is a choice. In fact, that's really what both these decisions were about. Who chooses? Is it government or the individual? And does the government have the right to force such basic choices on people? Who you have to pay off as a condition of employment? What you have to provide as an employer beyond the obvious realms of a safe working environment and an agreed upon rate of pay no matter what your principles? Would the Court have ruled, for instance, that Muslims are to be required to handle pork and alcohol if that's part of their job requirement? Isn't that the same principle, the free practice of religion guaranteed in the First Amendment? Obviously not anymore. Welcome to Obama's America.
The Roberts Court is going to be remembered for its cowardice and willingness to punt rather than the exercise of what is supposedly its job, to interpret and rule on the Constitution.
And the fact that this was yet another 5-4 decision doesn't bode well for our liberties.Not at all.