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NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, July 09, 2014 ::
I'll let ATL's Elie Mystal, who is right, be your portal to this one.
:: David M. Wagner 11:22 PM [+] ::
Hobby Lobby came out the Gonzales v. O Centro Espirita-way I mentioned yesterday, except with Alito writing rather than Roberts. On the surface it's a limited holding - applies only to closely-held corporations, depends entirely on the Religious Freedom Restoration Act (RFRA), and at that, on the second, "least restrictive means" prong of RFRA.
1. RFRA gives protection to religiously-motivated conduct that goes beyond the Court's construction of the Free Exercise clause in Employment Division v. Smith, and even beyond the "pre-Smith cases," in that those cases were vague about whether their "compelling state interest" test had a "least restrictive means" prong or not, while RFRA clearly does.
2. The Court may assume without deciding that providing access to contraceptives "without shared cost" (what normal people call "for free") is a compelling state interest; even so, ordering that this interest be carried out through mandates to private parties is not the least restrictive means, that is, the means with the least impact on religious liberty.
In a brief solo concurrence that demonstrates everything objectionable about his style, Justice Kennedy says the Court affirmatively holds that providing access to all FDA-approved contraceptives "without shared cost" is a "compelling state interest." He is wrong. All the Court's opinion's discussions of this interest as "compelling" are kept in the hypothetical voice.
(Please remember that a real "compelling state interest" is like a constitutional hand-grenade: it destroys what it's thrown at, such as otherwise-applicable constitutional rights. There's a compelling state interest in preventing reporting of an imminent U.S. military offensive, but that means active media censorship, so we're talking serious stuff. Sometimes the Court gets it wrong: it labelled prevention of a Japanese invasion of the West Coast a compelling state interest - and so allowed the Japanese-American internments in California. Stop handing out compelling state interests like candy. They're dangerous.)
3. The decision is confined to for-profit corporations that are closely held. Does the for-profit status of respondent (they won below) Hobby Lobby, and appellant (they lost below) Conestoga, mean they can't have religious freedom? The Third Circuit in Conestoga said corporations "do not pray, worship, observe sacraments...." True, but so what? There goes a court, again, trying to define religion. Back in 1961, the plaintiffs in Braunfeld v. Brown, five Orthodox Jewish merchants who had a religious obligation to close on Saturdays, raised a Free Exercise objection to Pennsylvania's Sunday closing law. They lost on the merits - and this, to dissenting Justice Ginsburg, disposes of that precedent. It does nothing of the kind: tthe case of Braunfeld and his co-plaintiffs was heard, and no even breathed the suggestion that because they were proprietors of incorporated for-profit businesses - and indeed, loss of profit went hand-in-hand with their Free Exerise claim - that therefore they could not be heard to raise their claim. Win or lose, they were heard. (And they lost, per Chief Justice Warren's plurality opinion.)
4. The future of the Obama Administration's "just sign here" alternative - where, instead of providing contraceptive coverage, you sign an affirmation that you object to doing so, and that triggers the insurance company providing it instead, without any further assistance from you - is at issue here. The Court points out (slip op. at 49) that it may be a "less restrictive means" than an order to provide abortifacient contraceptives or face massive fines, and this is enough to show that the latter Hobson's choice, at issue here, flunks the "least restrictive means" test.
But the Court also goes out of its way not to endorse "just sign here." The dissent (appropriately) jumps on this: several cases testing the constitutionality of "just sign here" (that's my name for it, btw - no one else uses it) are working their way through the courts. Says the Court today: "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims." (Slip op. at 44) And it refers us back to today's note 9, which refers to the Court's injunctive relief granted to the Little Sisters of the Poor, to whom a "Just Sign Here" ultimatum was offered. (The reprieve was granted through Justice Sotomayor: credit where due.)
So, is the Court disingenous for suggesting a "least restrictive means" that it believes might flunk the "least restrictive means" test on other facts? No, because the issue remains undecided, and because the Court also draws attention to the larger point: if a public good is as important as HHS says the provision of a complete menu of contraceptives is ("women's health and well-being," in the dissent's wording), then why should it not be paid for out of general government funds?
I have a theory on that. Before he pre-Civil War, before the Thirteenth Amendment, the Constitution had, alas, a clause that demanded the return of escaped slaves to their masters (Art. IV Sec. 2 clause 3). It did not specify how this was this was to be done, and Congress passed Fugitive Slave Acts to implement it. The one enacted through southern power in Congress as part of the Compromise of 1850 imposed an obligation on all citizens to take part in returning runaway slaves. It was not to be a "mere" government duty, to which one contributed, reluctantly, only through taxes: you now had to do it. People with fundamental objections to slavery had to participate in it.
Regulations like the HHS Mandate under the ACA are like that. It just frosts some people's shorts that they are sharing this country with people, even though few in number, who won't voluntarily have anything to do with abortion or abortifacients, or even, in some cases, with contraceptives. Call it "women's health" all you like, but there are still dissenters from the contraceptive culture. So, the thinking goes, we'll make them handle them. If not by handing them out directly, then through direct funding. If not through direct funding, then through a signature that acts as a trigger for - direct funding (the "just sign here" option). We'll see what happens to the Resistance when everyone's hands are dirty.
So the Court is, I think, prescient in withholding premature endorsement from "Just Sign Here," even while noting, correctly, that it is a less restrictive means than mandatory funding, and therefore enough to prove that mandatory funding fails RFRA's "least restrictive means" test.
Justice Alito is aware of what's at stake for religious freedom. Until now, Justice Ginsburg has not been known as a Smith enthusiast or a RFRA opponent (though as a matter of fact she concurred in City of Boerne, striking down RFRA as applied to state and local governments). Today Justice Alito (for the Court, of course) notes: "In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself."
Why is that important? Because (the Court goes on to point out) it explained forcefully in Smith (and, I would add, more forcefully in Justice Scalia's concurrence in Boerne) the problems of judicial administration of religiously-based conduct exemptions. But Congress wanted the courts in that business anyway, and so enacted RFRA, which - at the federal level - it had a right to do. Justice Ginsburg, in other words, goes beyond the Court's considered option against religious exemptions from generally applicable statutes in Smith, and would apply that very interpretation to RFRA, which was enacted to counteract Smith! If there's an "animus" against religion here, it's not in the Smith majority.
Besides judges calling close ones about religious exemptions, there's something else that Smith warned about, that RFRA happily does not promote, and that is - judges making decisions about the reasonableness of folks' religious beliefs. Yet today's dissent, while professing to share this disinclination, has a real problem with the petitioners' notions of moral causation and responsibilty. The dissent declares (dissent slip op. at 23-24) that the owners of Hobby Lobby and Conestoga shouldn't worry, because they're not buying abortifacients - it's just (some of) their employees that are. See? No problem! Well, that's one theory of collaboration in evil that some religions may adopt, but that others may have trouble with. (See what you can do thinking of your own hypos.) The Court responds (slip op. at 36):
This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to ake such a step. See, e.g., Smith, 494 U. S., at 887....
:: David M. Wagner 12:19 AM [+] ::
The dissent was written by Justice Scalia, joined by what the media call "the liberals." This happens in 6th Amendment Confrontation Clause cases too, except that Justice Scalia's crystalline reasoning has in some cases begun to persuade a majority on that one. But not always. Anyway these crim pro cases really show the intellectual poverty of ideological labels on the Court. There's originalism, and there's non-originalism, and in many cases, originalism gives criminal defendants rights that fair-weather originalists want to overlook.
(And oh gosh, look at this. Smatterof fact, this was the subject of my most recent Federalist Society lecture.)
And it's not that I always side with Scalia when he and Thomas split, because I don't....
:: David M. Wagner 10:30 PM [+] ::
The unanimous loss for Obama's position in Noel Canning has been duly noted, but, as Justice Scalia pointed out, the Court rejected the historically defensible meanings of "session" and "recess" and instead held little more than that the President can't use a Senate lunch break for a recess appointment, and that we the Court hereby invent a 3-and-10-day rule and will keep you posted. Yes, it's amazing to find a mostly-Democrat-appointed majority, led by Breyer, telling Obama he can't do something he thought he could do; and, as for McMullen, it's amazing when this Court unanimously finds a restriction on pro-life speech unconstitutional; but the ban self-evidently applied only to abortion opponents, and contained exceptions for their adversaries - and the Court found it "content neutral," and unconstitutional only because it's a little too broad, and btw see Part IV for hints on how to do it better next time.
In Gonzales v. O Centro Espirita, Roberts for a unanimous Court wrote that federal RFRA really means what it says, and if a majority still thinks that, then (without even getting into the issue of RFRA-less Free Exercise), that should produce a strong 9-0 for Hobby Lobby. But in various district courts, judges have been taking it upon themselves to determine what constitutes a "substantial burden" on religion, a judicial practice rightly discountenanced in Employment Division v. Smith; and of course Hobby Lobby is a business, not a church (not that that should matter, because there's no reason to think either the Free Exercise Clause or RFRA applies only to churches, but....)
Does the fact that Scalia has been spending a lot of time on "scathing concurrences" recently mean that he has nothing to say against the Hobby Lobby opinion? Maybe - but he also wrote a stirring dissent in Lee v. Weisman in 1992 that came out a few days before his even more stirring dissent in Casey. Maybe his denunciatory work in Noel Canning and McMullen mean he's just in the groove this month.
:: David M. Wagner 9:53 PM [+] ::
Catholic, Naval officer, POW, hero, U.S. Senator, attorney. 89. RIP.
:: David M. Wagner 8:47 PM [+] ::
Last Friday we had a panel at Regent, co-sponsored by our Federalist Society chapter and by The Seventh Admentment Advocate (Andrew Cochran, Washington rep.). Our principal speaker was legal history Prof. Paul Finkelman, of Albany Law School, currently visiting at Louisiana State; I added some comments, and there was q-&-a between us and with the audience.
We had hoped to have as well Houston-based trial attorney Sean Patrick Tracey, but he was detained by an illness in the family - something I offer to students as a good example: this very busy litigator dropped everything to be with a sick relative. Too often the practice of law messes up one's priorities; not so with Mr. Tracey.
The topic was frames as, "Should the Seventh Amendment be Incorporated"? Prof. Finkelman took the view that civil jury access is under threat, but that a comparison of how many filings get to juries in state versus federal court shows that simply incorporating the Seventh would change very little. His target, rather, is the Federal Arbitration Act, decisions such as Circuit City interpreting it, and boilerplate language creating contracts of adhesion that enforce it.
Me - I did my originalist thing: that the Framers' generation thought of jury service as even more important than voting as a form of civic participation and of self-government. It was essentially my Weekly Standard article, except that I also pulled in Strauder, where the Court showed at least as much sympathy for the plight of the excluded black jurors as for Strauder himself, tried without even the possibility of a black juror. In other words, the Court vindicated the rights of blacks to be jurors, more than (as it made clear) the right of Strauder to have one.
Final note: Prof. Finkelman - who enjoys helping and advising students across ideological barriesrs, and who also has a specialization in the law of baseball - asked me why the Federalist Society was taking an interest in juries. I replied: the Federalist Society as such doesn't take positions, but I'm taking an interest in juries on originalist and civic-participation grounds, with a tip of the hat to Prof. Akhil Amar on this issue. FedSoc people think a lot of different things. Prof. Finkelman said, "Just what I like best - a game where you can't tell the players even with a program!"
:: David M. Wagner 2:01 PM [+] ::
:: David M. Wagner 10:35 PM [+] ::
:: David M. Wagner 4:53 PM [+] ::
Friends who know my penchant for cross-ideological coalitions (wail til I bring you the news of the glorious Scalia-Kagan alliance on the Confrontation Clause!) have called my attention to H.R. 3309 the Innovation Protection Act, introduced by the reliably conservative Rep. Robert Goodlatte (R.-Va.) and supported by the Obama administration.
The goal is to crack down on patent trolls. Though such persons and firms have come up with anodyne names for themselves ("non-practicing entities," "patent-assertion entities" - the latter is more candid), there remains, rightly, widespread opposition to what they do: buy up patents with no intention but to send out threat letters to companies that may (or then again may not) actually be using those patents. Patent trolls make billions in settlements that could otherwise go into job-creating, life-enhancing products. Patent nerds, of which I am not one, must correct me, but as I understand the matter, current legal rules allows patent trolls to state a claim without even specifying their patent or describing how the defendant is infringing. So it's a big but unproductive business.
Mr. Goodlatte's bill was voted out of the House Judiciary Committee on Nov. 20 with a 33-5 majority and a standing ovation. (Note to non-ironists: I made the ovation up. It's a Brit-polit thing; picked it up from a Britcom called "No Job For a Lady.")
But a funny thing happened on the way to the Floorum. Several conservative groups (e.g. AEI, through its tech-law blogger, Michael Rosen) have noticed that its reforms of legal procedure are somewhat radical. If my patent-nerd friends will tolerate an explanation by someone not of their brotherhood - but who does care about procedure - the problems are something like this.
1. Currently, patent plaintiffs (or trolls, if you insist) need not be very specific at the pleadings stage; that comes later, after discovery. Under the Goodlatte bill, extraordinary specificity about the patent, and about the defendant's alleged infringement, is required at the pleadings stage - i.e. to "get into court," as layfolk not-inaccurately put it. This is said to be necessary to keep out the trolls. It'll do that all right - and it will also keep out a lot of small inventors who are indeed making good use of their patents, thank you very much, but who can't afford to defend them against deep-pockets infringers.
2. "Loser pays." On Planet Tort Reform, there is a continent dedicated to the debate over whether American jurisdictions should adopt the "English rule," whereby the losing party bears court costs and, gulp, attorneys' fees for both sides. Nothing like it to filter out all but the most slam-dunk plaintiff cases, goes the argument in favor. But, goes the opposite argument, it also filters out (cue the "Slam the Courthouse Door" Blues) plaintiff cases that are meritorious yet not so lopsidedly so that they can easily be won on motion on the pleadings, or even at summary judgment (and of course discovery is costly). There should be room for a middle range of cases that actually have to be argued about (preferably in front of a jury). The English rule of course does not prohibit this, but makes getting there very high-risk.
That debate goes on; the Goodlatte bill settles it in favor of the English rule (loser pays) in patent infringement cases, as the strongest possible deterrent to the trolls. But, again - in patent infringement as in other causes of action, not all plaintiffs are trolls or opportunists, though some are. Perhaps more importantly, the Goodlatte bill doesn't quite go all the way in its adoption of the English rule: it allows courts to vary the statute's presumption of cost allocation under a "substantially justified"/"special circumstances" test.
What could be more reasonable than that? In litigation, almost anything. What this will do is guarantee post-verdict judicial review of cost-allocation in nearly every case (as AEI's Michael Rosen points out in the link supra); the emergence of a judicially-made law of "substantially justified" and "special circumstances" just for patent litigation cost allocation; and eventually, an entire section of the organized bar specializing in just this, with its own ABA section and its own annual conferences in exotic locations.
Really, it's public-spirited of the American Association for Justice (formerly ATLA) to oppose the Goodlatte bill: it could lose out on patent litigation in the short run, but in the long run, it could make out like bandits on the cost-allocation follow-up litigation. Except - the losers would be innovative firms too small to afford to fight big infringers over cost allocation, and such firms need lawyers. On this one, I'd take those lawyers' advice.
:: David M. Wagner 12:56 PM [+] ::
It chose for review the two cases that I chose to study with my First Amendment seminar, because they are the cases that stake out the most decisive position on each side: Hobby Lobby (10th Circuit, granting a preliminary injunction), and Conestoga Wood (3rd Circuit, denying one).
Though Conestoga Wood is closely owned by the Hahn family, of Mennonite faith and conviction, the 3rd Circuit's opinion tried to assure them and us that when they provided, through insurance, the types of contraceptives that function as abortifacients, they needn't worry: it's not the Hahns doing it, it's Conestoga Wood!
The corporate form separates the owners from the corporation for corporate purposes - but for all purposes? Would the 3rd Circuit's theory work in a human rights criminal trial ("It wasn't us supplying the lethal materials, it was our company")?
I recommend Judge Jordan's dissent in Conestoga. One issue he flags that Judge Tymkovich's majority opinion in Hobby Lobby does not is, just what is the "Institute of Medicine"? It's a private entity. Click on that website link for information on how wonderful it is ("self-serving," Judge Jordan notes). So, Congress made the law, delegated the details to an agency, the agency re-delegated key details to a private entity, which returned them to the agency, which then made them law. Does that pattern remind one of anything? A.L.A. Schechter, but with the HHS Secretary in place of the President?
:: David M. Wagner 4:18 PM [+] ::
:: David M. Wagner 7:02 PM [+] ::
Q.Isn’t it terribly frightening to believe in the Devil?
A. You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
:: David M. Wagner 6:04 PM [+] ::
:: David M. Wagner 3:35 PM [+] ::
Apparently the Republican Study Committee has endorsed a bill by Rep. Phil Roe of Tennessee, H.R. 3121. It lacks the "tribunals" of the Price bill, but its mandated changes in medical malpractice law are even more detailed. For example: a $250,000 cap on both non-economic and punitive damages, a definition of, and evidentiary standard for, punitive damages that in effect reserves them for intentional torts, and a rule against telling the jury about the damage caps.
Good arguments for and against all of these would be in play if they were being proposed by a state legislature as rules to govern med-mal suits within that state. But here it is Congress, proposing laws not only to govern suits in federal courts (which it can obviously do) but also in state courts, where a traditional state common-law cause of action - tort - is involved.
As with the Price bill, everything else about the Roe bill looks excellent (given the short time I've had to eyeball it). In moving it forward, though, I hope this particular GOP House, which took over the majority in January 2011 with claims of unprecedented concern for constitutionality of legislation, will ask itself questions about "fair-weather federalism."
Here is Rep. Roe's bill; see pp. 158 and following.
N.B. Yes, the very involvement of the federal government in health care in any way would probably have struck the generation of the Framers as beyond Congress's powers. For present purposes I'm assuming a lot of water under the bridge, and focusing on the federalism issue at hand that seems most acute: Congress telling state courts what their rules of decision are to be in a traditional matter of state, not federal, concern.
:: David M. Wagner 10:53 AM [+] ::
Well, Rep./Dr. Tom Price's Empowering Patients First Act, H.R. 2300, seems to have some momentum. It has many good features. But - and this is its relevance to a blog about constitutional law - it also has some features that make me squint a little.
Section 501 of the bill is about lawsuit reform. Fine. But if it this is to be done at the federal level, greater caution is needed, on federalist principle. This section of the bill imposes significant burden-of-proof rules on all courts dealing with “health care lawsuits,” including medical malpractice.
Which forces the question: under a properly constrained view of Congress's powers, does Congress have power to tell state courts what rules of law they are to apply in cases originating in state law? Is a federal law (or a section of one) made "in pursuance of" the Constitution if its primary function is to rewrite the states' tort law?
Section 501 also directs the HHS Secretary to form partnerships with certain named doctors' organizations “to develop guidelines.” Now, quite apart from how tired Obamacare should already have made us of federal legislation that "directs the HHS Secretary...," this should raise some more red flags for constitutional conservatives. In the heady days of the early New Deal, Congress authorized the President, to consult with business organizations in setting the wage and price levels under the National Industrial Recovery Act. The Supreme Court struck this down, in a unanimous decision – A.L.A. Schechter Poultry v. U.S. – a decision that has, it is true, never been replicated, but has also never been overruled or even questioned by the Supreme Court.
I don't mean that Title V of the Price Bill is unconstitutional in the same way the NIRA was; only that it pushes an envelope that has been found unconstitutional in the past, and found so for good reason. The Constitution makes Congress our lawmakers. Though this Non-Delegation Doctrine has proved difficult to enforce judicially, given that the executive branch has the enforcement power and all enforcement requires interpretation, one long "delegation step" further is taken when Congress directs a federal agency to work with outside parties (other than through the APA notice-and-comment process, of course.)
Attention should be paid as well Section 502: “Grants to Create Administrative Health Care Tribunals.” Back in Section 501 we found the bill telling state courts what rules to apply. Here it takes legal matters out of state courts – and away from state juries altogether – transferring them to new “tribunals.” Wasn't this one of the complaints against both HillaryCare and Obamacare – that they created too many unaccountable decision-making panels?
Creating “tribunals” (or even, to be more precise, giving states strong incentives to do so) does something very similar at the state level, and also forces us to reflect on another endangered value – that of the civil jury. Here, two conservative goals may clash. Yes, some civil juries have reached verdicts (not all of them in medical malpractice cases) that were based on strange legal theories, awarded disastrous damages based on them, and generally drove up insurance rates and discouraged innovation thereby. All the same, it should not be left to liberals to remind us how important our Framers thought civil juries were.
The original Constitution, as it came out of the Convention for ratification, already protected the right to a jury in criminal cases. The absence of similar protection for juries in federal civil trials was an objection, the force of which took the pro-ratification forces by surprise. As part of the promise-giving that assured ratification, the Bill of Rights added, in the Seventh Amendment, protection for the right to jury trial in most (in effect, all) federal civil cases as well.
Of course it applied only to the newly-created federal courts, and even today, the Seventh has not been “incorporated” in its entirely against the states. But states protect the right to civil juries in their state constitutions, and almost all did so in the 1789-91 period, crucial for evaluating the Bill of Rights.
I mentioned that Sec. 502 of the Price Bill gives incentives to form tribunals; it does not force states to do so. Problem gone? No. As a practical matter, states do what the federal government gives them grants to do. The Supreme Court considered, and unfortunately rejected, the argument that federal grants to states are de-facto coercion of state governments. South Dakota v. Dole. Despite Chief Justice Rehnquist's authorship, most conservative Court-watchers have felt this was wrongly decided – that it opens a wide back door for the dismantling of federalism.
But Congress need not use every power the Court has said it possesses. It need not even agree that it possesses every power the Court has said it does. From the Court allowing Congress to do by grant-making what it cannot do by direct legislation, it does not follow that Congress should do so.
"But isn't decision-making by expert tribunals a good thing?" Well on that hinges the whole rise of the administrative state, and the concurrent loss or real representative democracy, doesn't it? Interesting thing - the Founders thought juries were important to representative government, not just to deciding facts. Nosing them out of health care is scary; bad enought that Obamacare does so much of it.
Rep. Price deserves praise for his work, and most of his bill deserves passage. But federalism and civil juries are two constitutional values that should not suffer injury in the imperative fight to repeal and replace Obamacare.
:: David M. Wagner 6:39 PM [+] ::