Circuit Court Rejects Attack on Contraception Coverage

Yesterday, the Tenth Circuit Court of Appeals denied a petition to prevent enforcement of the ACA's contraception coverage provision for owners of the Hobby Lobby chain, who disapprove of certain types of birth control. They claim that the law infringes on their religious liberty in violation of the Religious Freedom Restoration Act (RFRA). Under RFRA, federal laws cannot substantially burden the free exercise of religious beliefs unless they further a compelling government interest in the least restrictive manner possible.

As Reuter reports:

The company faces fines of up to $1.3 million daily if it disobeys the mandate, which takes effect on January 1 for Hobby Lobby, a $3 billion chain, and its smaller sister operation, Mardel, a Christian-oriented bookstore and educational supply company.

Both companies are owned by the Green family of Oklahoma City, whose patriarch, David Green, is ranked 79th on Forbes Magazine's list of the 400 richest Americans, with a net worth of $4.5 billion.

In rejecting the RFRA claim, the unanimous court agreed with the lower court, which had put the case succinctly:

[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else's participation in an activity that is condemned by plaintiff[s'] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary "substantial burden."

The corporation's owners, who are being represented by the right wing Becket Fund for Religious Liberty, have said they will take the case to the Supreme Court.

Several months ago, People For the American Way Foundation released 12 Rules For Mixing Religion and Politics, a publication designed to generate conversation on how to create and sustain a civic space reflecting our nation's Constitution and the values of respectful discourse. One of those rules states:

Government has a right to demand that religious institutions and individuals comply with reasonable regulation and social policy.

Just where to draw the line is a question where reasonable people can disagree. The requirement to provide certain health insurance for your employees – not for yourself, but for people you hire in a business you place in the public stream of commerce – seems a reasonable one.

PFAW Foundation

Far Right Poised to Reverse a Century of Progress with Romney's Court

With as many as three Supreme Court Justices possibly stepping down in the next four years, either Barack Obama or Mitt Romney will have a profound and lasting influence on the nation's highest court. And since federal judges have lifetime positions, the president's impact will last decades after he has left the White House. That is why, as TPM reports today, conservatives are bullish that a Romney Court could reverse the great advances in justice of the past century.

Liberal-leaning Justices Ruth Bader Ginsburg, 79, and Steven Breyer, 74, are likely candidates for retirement during a Romney administration, the GOP nominee has vowed to appoint staunch conservatives, and the influential conservative legal community will make sure he follows through.

Replacing even one of the liberal justices with a conservative, legal scholars and advocates across the ideological spectrum agree, would position conservatives to scale back the social safety net and abortion rights in the near term. Over time, if a robust five-vote conservative bloc prevails on the court for years, the right would have the potential opportunity to reverse nearly a century of progressive jurisprudence.

For all those reasons, conservative legal activists anticipate that a Romney win would be the culmination of their decades-long project to remake the country's legal architecture.

The article is must-reading for learning about the vision of America that a Romney Court would impose on us. As many people know, abortion rights would almost certainly be eliminated. But also in the crosshairs are the federal government's authority to run critically important programs like Medicare, Social Security, and Medicaid. As the article makes clear, conservatives make no secret of their agenda.

The powers conservatives most want to limit are rooted in the Constitution's Spending and Commerce Clauses, which the Supreme Court already constrained in its decision to uphold the Affordable Care Act. The Supremacy Clause could also be circumscribed with one more conservative vote, potentially limiting people's ability to sue if government assistance laws are not properly implemented.

The ACA decision revealed that there are already four votes on the Court to prevent the Taxing Clause from being used to promote regulatory goals. And though the staunchest legal conservatives hope a fifth vote might lead to the eradication or restructuring of programs like Medicare and Social Security, [conservative professor Randy] Barnett cautions that the debate over the scope of that power dates “all the way back to Alexander Hamilton.”

The far right has long bristled against the vision of the Constitution as a document designed to give the federal power robust powers to pass laws addressing national problems and protecting ordinary people from being exploited from those who are far more powerful than they are. They hearken back to an era when a different arch-conservative Court “protected” the “economic liberty” of powerless workers to “agree” to work all day every day at slave wages under horrific conditions. Their cramped vision of congressional authority would severely undermine the American people's power to use Congress address national problems that states and cities alone cannot solve.

Jamie Raskin, a senior fellow at our affiliate People For the American Way Foundation, has written about how the far right's interpretation of the Constitution is at odds with the intent of the founders, and how a robust federal government is essential to giving the American people effective power over our own economic and social life.

The far right has long awaited a complete takeover of the Supreme Court, so they could return our country to a dark time when the economically dominant were able to abuse their power over others with impunity. They have been anxiously awaiting the day when they could retake power from the American people.

That day will be soon, if Mitt Romney becomes president and fulfills his promise to populate the Supreme Court with right wing ideologues.

PFAW

Obama Talks About the Supreme Court

Rolling Stone published an interview with President Obama yesterday in which he discusses what would happen to the Supreme Court – and to the American people – if Mitt Romney wins the election and gets to fill the next Supreme Court vacancies.

When asked if Roe v. Wade would be overturned, the president responded:

I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.

President Obama also criticized Chief Justice Roberts' ruling that the Affordable Care Act, while a constitutional exercise of Congress's taxing power, was not constitutional under the Commerce Clause.

The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress' power under the Commerce Clause in future cases.

Although it was mentioned in the interview, the Court's ACA decision also limited Congress's ability to set basic program requirements in federal-state partnerships like Medicare.

If Mitt Romney fills the next vacancies on the Court, the far right Justices will be able to aggressively roll back congressional authority. It is through Congress that the American people are able to address national problems like healthcare, the environment, worker safety, and the economic safety net. And it is through Congress that the American people are most effectively able to hold corporations accountable for their actions when they harm the American people.

But it is through Mitt Romney's Supreme Court that the far right would severely weaken the power of the American people to act through Congress.

PFAW

Don’t Forget Who John Roberts Is

Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.

A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.

Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.

Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:

Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.

With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.

Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.

PFAW

A Few Thoughts About the Supreme Court’s Obamacare Decision

First and foremost, today’s Supreme Court ruling was an extraordinarily important win for anyone who cares about healthcare. As Justice Kennedy’s dissent made clear, the Court’s most conservative members were on the verge of trashing the entire Affordable Care Act, including provisions ending discrimination because of preexisting conditions, allowing young adults to stay on their parents’ health plans, and reigning in some of the worst excesses of the insurance industry. All of that was at stake today, and the Court’s ruling will allow millions of people to receive better, more affordable health care. Hallelujah for that.

But today’s ruling also shows how dangerously extreme our Court has already become.

To be clear: there should be no question that the Affordable Care Act is constitutional. The Constitution’s text and history, bolstered by decades of precedent support the law. The fact that the nation was forced to endure a grueling legal drama over the Act’s fate says nothing about the constitutionality of the mandate itself (which has been supported by Republicans ranging from Mitt Romney to Newt Gingrich) and everything about the makeup of our federal courts. As John Cassidy pointed out yesterday at The New Yorker, the challenge to the Affordable Care Act is the result of decades of concerted work by the far Right:

Though the case against Obamacare that the Court is considering is a legal travesty, lacking in serious foundation, the moment is truly momentous. After thirty years of organizing, strategizing, and mobilizing, the conservative counter-revolution may be about to win its biggest victory yet: the striking down of a massive new government program, and, equally important, the overthrowing of a legal doctrine that Administrations of both parties have relied on for seventy years to regulate the economy.

In the wake of Roe and the Warren Court’s Civil Rights and religious liberty decisions, the Right realized that in order for its agenda to win in the Courts, it needed to change the judges. Judicial restraint aside, Conservative activists in black robes are powerful advocates for the Right’s extreme agenda, and Republicans have been relentless in placing partisan ideologues on the bench throughout the judicial system.

The four votes in favor of striking down Obamacare are a monument to that strategy and a promise of things to come. Twenty-five years after his own nomination was rejected by a bipartisan coalition, Robert Bork has a new job as Mitt Romney’s chief judicial advisor. If Romney wins in November, votes that upheld the Affordable Care Act will likely be replaced with votes to strike it down, legal niceties be damned.

Finally, it would be wrong to read this ruling—especially Justice Roberts’ portion of it—in isolation. Some supporters of the Act have been quick to applaud the Chief Justice’s vote to uphold the law, but the details of his decision and his broader agenda are profoundly disturbing. Not only does his ruling today carry frightening implications for future cases under the Commerce Clause--which undergirds a panoply of hard won progressive legislation—it says little about the issues most squarely in his sights. In voting to uphold Obamacare, Roberts paused only briefly from his ongoing gutting of laws protecting Civil Rights, women’s rights, environmental protections, clean elections and labor unions. It would be unconscionable if Roberts’ vote to uphold health care reform distracted from, say, the likelihood that he’ll eviscerate the Voting Rights Act next year.

All told, progressives shouldn’t be afraid to celebrate today’s ruling: a win is a win. But no one should forget that our Court has lurched dangerously to the right in recent years, and that if Mitt Romney achieves the White House in November, today’s narrow victory will become tomorrow’s devastating defeat.

PFAW

A Monumental Day on Multiple Fronts

This morning I skipped the office and headed straight over to the Hill to witness history as the Supreme Court handed down its ruling upholding President Obama’s Affordable Care Act legislation. (Click here for the PFAW statement.)

Now I’m headed back to the hallowed halls of the House to witness another bit of history as Chairman Honda and his colleagues launch the Congressional Anti-Bullying Caucus.

In preparation for a full afternoon and evening of events, the Caucus has released Bullying: Framework of Federal Efforts & Current Legislation.

Bullying in the United States has been brought into the national dialogue due largely to mass media attention including coverage of bullying behavior in our schools, communities, and online, as well as major motion pictures such as the 2012 documentary Bully (directed by Lee Hirsch). This interest has led to increased legislative attention in the United States Congress, as well as increased resources dedicated toward bullying prevention and intervention in federal Departments. The federal government mostly addresses bullying through the United States Departments of Justice, Education, and Health & Human Services, while Defense, Agriculture, and Interior also serve as part of the Federal Partners in Bullying Prevention Steering Committee. Officials from these agencies have launched two prominent websites that serve as a central resource for bullying prevention: stopbullying.gov and findyouthinfo.gov.

The report lays out the federal landscape for the anti-bullying fight.

PFAW and AAMIA have voiced their support and will be in the room as the day unfolds.

Stay tuned!

PFAW

Stripped of Dignity by the Roberts Court

Last week, the Supreme Court's arch-conservatives made professions of deep concern for the right of the individual to be left alone from a government mandate to purchase insurance. Less than a week later, in yesterday's 5-4 Florence v. Board of Freeholders decision, the same arch-conservatives had no difficulty in approving the needless dehumanization by the government of completely innocent Americans by forcing them to endure the humiliation of unwarranted strip searches.

A New Jersey government database incorrectly stated that Albert Florence had failed to pay an old fine. When he was in a car that was pulled over by a state trooper, the trooper called up the (inaccurate) records and immediately handcuffed and arrested Florence. He was held in jail for seven days and strip-searched twice. As reported by NPR:

Florence said the experience "petrified" and "humiliated" him. Upon entering the jail, he was ordered to take a delousing shower, then inspected by a guard who was about "an arm's distance" away and instructed Florence to squat, cough and lift up his genitals.

Florence subsequently sued, contending that automatically strip-searching a person who is arrested for a minor offense violates the Constitution's ban on unreasonable searches.

But on Monday, the Supreme Court disagreed by a 5-4 vote. Writing for the court's conservative wing, Justice Anthony Kennedy noted that jails are "often crowded, unsanitary, and dangerous places," and that, therefore, the courts must defer to the judgment of correctional officials in order to prevent new inmates from putting lives at risk with weapons or contraband that they may "carry in on their bodies."

So even the most minor of infractions can now trigger degrading strip searches. Justice Breyer's dissent describes other Americans forced to endure this degradation: a nun arrested for trespassing during an anti-war demonstration; people stopped for driving with a broken headlight or a noisy muffler; a driver who turned without signaling; and a bicyclist riding without a bell. And, of course, as Mr. Florence's case shows, the people forced to endure this may be completely innocent.

The five Justices have corrected the impression that the rest of us had that America isn't the sort of country where the government can arrest innocent people and force them to endure a humiliating strip search with no reason at all to suspect they are hiding anything.

Yet they were so respectful of Tea Partiers who don't want to buy health insurance, expressing deep concern about a fundamental change in the relationship between the American people and their government.

I think Mr. Florence would argue that the five conservatives have already made that change.

PFAW Foundation

RNC Figures Out the Best Way to Attack Obamacare: Lie

Yesterday, the Republican National Committee released a web ad featuring the voice of Solicitor General Donald Verrilli haltingly defending the Affordable Care Act. After saying that “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli trails off, coughing and stuttering for an incredibly long time.

But as Bloomberg News revealed, the awkward silence isn’t credible. It’s entirely doctored. In the actual audio of the case, Verrilli pauses only briefly before continuing “But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.

Tom Goldstein of SCOTUSblog calls it “the single most classless and misleading thing I’ve ever seen related to the Court,” and he’s right.  But it shouldn’t come as any surprise that this is the tack taken by the GOP. From day one, Republicans decided that the best way to oppose President Obama’s health care reform agenda was by lying about it. Whether it’s about death panels, rationed care or the Solicitor General’ performance before the Supreme Court, Republicans have made clear that there’s no lie they won’t tell in order to damage the president and frustrate his agenda.

After the Citizens United decision, we’ve seen outside groups pushing sleazy “Swift Boat” style attack ads. The fact that the RNC itself chose to push such a blatant lie only underscores how comfortable with dishonesty--and how desperate--the party has become.

Republican leaders, including presidential contenders who hope to lead the party, should renounce these dishonest attacks.

PFAW

Sekulow Feigns Outrage at Challenge to Conservative Justices

PFAW Senior Fellow Jamie Raskin went on Fox News last night to discuss the Supreme Court oral arguments on the Affordable Care Act with Sean Hannity and the American Center for Law & Justice’s Jay Sekulow. Unsurprisingly, Sen. Raskin didn’t get much time to make his case before he was hit with a wave of faux outrage from Sekulow and Hannity.

The subject of the outrage? Sen. Raskin had called some of the conservative justices’ questions “weak” – which somehow for Sekulow turned into “attacking the integrity of justices of the United States.”

The conversation starts about five minutes into this clip:

Sekulow’s attempt at outrage is rather stunning, since his organization, the ACLJ, exists in a large part to rail against the motivations – or, if you will, the “integrity” -- of judges and justices with whom he disagrees. When the 9th Circuit ruled in favor of marriage equality, he slammed it as “another example of an activist judiciary that overreached.” When the Senate was considering then-appeals court judge Sonia Sotomayor for her seat on the Supreme Court, Sekulow said, "To call her a judicial activist is an insult to judicial activists."

Sekulow has every right to criticize justices and judges with whom he disagrees. But he doesn’t exactly have the high ground for slamming those who offer mild criticism of questions conservative justices ask in oral arguments.

For more on Jamie Raskin’s analysis of the health care case, read his piece in the Huffington Post yesterday.

###
 

PFAW

PFAW’s Jamie Raskin Discusses Health Care Arguments on MSNBC

People For the American Way Senior Fellow Jamie Raskin joined Ed Schultz last night to discuss Tuesday’s Supreme Court arguments on the Affordable Care Act’s individual mandate. Watch:

Yesterday, Sen. Raskin discussed the case in more detail in the Huffington Post.

PFAW