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For anyone who hasn’t been paying attention to the political world, RINO is a term sometimes applied to Republicans who are deemed insufficiently committed to this or that “principle” of the current Republican Party. Hence, in their view: Republicans In Name Only. While intended as a term of derision (or worse), it is a label I bear proudly. As I wrote in a letter to the New York Times published in April 2013, my motto is: “RINOs, let us unite and put our hides on the line to save our party from itself.” Bold words, I later thought, but apart from the occasional letter to the editor, what am I doing about it? This blog is the answer. A very small step indeed, but possibly one that might encourage others. Continue reading

SECOND UPDATE to Blog 43, Part I: The ISIS Crisis

 

Back on July 30, we posted Blog 43, Part I: The Isis Crisis. In that post we observed that on June 13 President Obama had belatedly acknowledged for the first time the existence of an threat by ISIS that demanded his attention. The action he had announced, however, was conspicuously limited—dispatching 300 military advisers to assess the situation—and he insisted the problem was a regional one posing a threat to “American interests” that was at most remote and contingent. For our part, we quoted current and former government officials who saw a far more serious and immediate danger to the United States, and we urged Republicans “ to press for the articulation of some coherent and realistic strategy” to meet that danger.

A week later, The President announced a more significant military response but one that was still quite limited: the use of air strikes to relieve the siege of Yezidi Iraqis on Mount Sinjar and to halt an ISIS advance on Erbil where thousands of Americans were resident. In an Update on August 10, we pointed out that the President was still treating ISIS as essentially a regional problem and that it was not clear if he had any strategy extending beyond Mount Sinjar and Erbil. We also criticized the President’s continuing insistence in ruling out the possibility of having to deploy ground troops against ISIS:

While the President’s emphatic and categorical bar to the use of combat troops may have been politically helpful, it was strategically misguided. The President has found, at his considerable cost, the unwisdom  of his categorical statement of what we would do if Syria used chemical weapons (crossed a “red line”). But a categorical statement of what we will not do can equally be a mistake. To begin with, it unnecessarily arms our enemies with an assurance that gives them greater confidence and freedom of action….

Beyond that, there may come a time when the President is forced to conclude that the introduction of combat troops is absolutely essential to national security. At that point, he would have to seek the support of Congress, the public, and our allies, and it will be far easier to gain such support if he does not have to climb over a self-erected barricade of rhetoric in the process.

On September 10, the President finally, and with evident reluctance, acknowledged that ISIS (or ISIL as he prefers) is a threat to the United States that requires an extended military response. Even then he clung to language portraying the threat as lying in the indefinite future (“ If left unchecked, these terrorists could pose a growing threat beyond that region — including to the United States.”) Nevertheless, he announced the need for a campaign to “degrade and ultimately destroy” ISIS. What changed the President’s mind? An old adage has it that a picture is worth a thousand words, and in this case the pictures were videos of ISIS beheading two American journalists, James Foley and Steven Sotloff. In the view of many observers, the videos had a powerful impact on American public opinion, leading to a consensus that ISIS was not simply another problem to be managed. Given the shift in the public’s perception, the President had little alternative to attempting to get in front of it.

In any event, the President’s address on September 10, brief but delivered in prime time, described the seriousness of the situation and at least some measure of the difficulty of finding a solution. For this we are inclined to give the President a resounding one, or perhaps one and a half, cheers. Why not three cheers? First, because the response outlined by the President has a major credibility gap: the “ground force partners ” on whom he places heavy reliance are slender reeds at best. With respect to ISIS in Syria, he called on Congress to furnish $500 million to arm and train the “Syrian opposition,” which he did not specifically identify but which was understood to be the Free Syrian Army (FSA). This is the very group for which the President’s national security advisers had, unanimously but unsuccessfully, urged support two years ago. Indeed, only this summer, Obama had derided as a “fantasy” the idea that it would have been effective to arm an opposition comprised of “farmers, doctors and pharmacists.” Yet the same farmers, doctors and pharmacists are now the linchpin of his strategy in Syria.

Moreover, quite apart from military competence, there is another problem with the FSA that has been little discussed. While the FSA has been involved in fighting ISIS to some extent, its principal adversary has always been Assad. Thus we now have the dubious task of persuading the FSA that instead of focusing primarily on Assad, they should now concentrate on our principal adversary, ISIS. Finally, as a September 11 article in the New York Times documented at some length, the President’s strategy “leaves the United States dependent on a diverse group riven by infighting, with no shared leadership and with hard-line Islamists as its most effective fighters.” The article cited analysts who observed that “the concept of the Free Syrian Army as a unified force with an effective command structure is a myth.

Even in Iraq, the situation is far from encouraging. Obama has expressed great enthusiasm for Iraq’s new Prime Minister, Haider al-Abadi. To be sure, Abadi is almost certain to be an improvement over Maliki, but whether he can form a truly inclusive government, and one that can command the loyalties of Sunnis, remains very much to be seen. In fact, two key ministries, Defense and Interior, remain unfilled. The Kurdish pesh merga appear to be the most effective fighters in Iraq, but they have been handicapped by the insistence of Baghdad that all weapons flow through it. We have acquiesced in Baghdad’s position with the result that much need weaponry has failed to reach the pesh merga.

The shaky quality of our “ground force partners” underscores the mistake in the President’s renewed insistence on drawing another “red line” by categorically ruling out “American combat troops fighting on foreign soil.” To be clear, no one disagrees with the President in proposing a campaign that “will be different from the wars in Iraq and Afghanistan.” No one has urged anything approaching a plan to send hundreds of thousands, or even tens of thousands of combat troops to the area. Indeed, to suggest otherwise would be to inveigh against a straw man. On the other hand, we join those who believe that the President has gone too far in proscribing in advance a combat role under any circumstances:unfortunately, some limited number of combat troops may well needed. One possible example, noted by Senators McCain and Graham, would be the use of special forces to “conduct targeted operations against ISIS leadership.” Chairman of the House Armed Service Committee, Howard “Buck” McKeon, put it more bluntly, predicting “This will take troops. It will not take divisions. But there’s no way around it; American boots will be standing on sand. Americans will be shot at, and they will be shooting back.”

Attempting to distance himself from comparisons with the wars in Iraq and Afghanistan, the President offered another comparison: our counter-terrorism efforts in Somalia and Yemen via air strikes. The consensus view, which we share, is that the latter comparison did not help the President’s argument. Apart from the fact that the terrorist forces in Somalia and Yemen bear little resemblance to ISIS, the results in those countries have not been all that successful. Both are essentially failed states in which chaos is the prevailing condition.

Finally, we give the President less than three cheers because of the confusing and somewhat half-hearted nature of his request for authorization from Congress:

Tonight, I again call on Congress to give us additional authorities and resources to train and equip these fighters.

* * * *

My Administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.

 

The President’s claim of authority rests on the Authorization for Use of Military Force (AUMF) passed in 2001, days after the 9/11 attacks and directed at al-Qaeda. This claim is clearly a stretch, depending as it must on an argument that ISIS is lineal descendant of al-Qaeda. Legalities aside, however, the President is clearly correct that we are strongest when the President and Congress work together, so why not ask for support outright instead of merely saying he would welcome it? The answer seems to be twofold. First, may be a fear that authorization would not be forthcoming (as appeared likely in connection to strike against Syria after its use of chemical weapons). Second, may have been a desire to spare Congressmen—principally Democrats—of the burden of voting for war (or something like it) shortly before an election.

On the other hand, the White House has asked to have the $500 million previously requested to train and equip the Free Syrian Army added to the Continuing Resolution (CR) that Congress will have to pass this month to continue funding of all government operations. A September 12 article in Roll Call, “How Obama Will Pay For His War,” reported that a draft CR providing the funding does not refer to “ISIL” or “ISIS” but merely to “Overseas Contingency Operations/Global War on Terrorism” which funded the Iraq and Afghanistan operations and is funding current operations against ISIS. Roll Call went on to explain that the OCO account is amply funded “because the drawdown of troops in Afghanistan has created room for more war spending somewhere else.” What the article did not explain was why the White House found it necessary to ask for authorization to train and equip the FSA but not the other costs of the campaign against ISIS which are ongoing, but have not even been estimated and which will be far larger.

Setting aside that puzzlement, we believe that Congress should debate the President’s proposed plan of action and, despite its manifest flaws and uncertainties, authorize the actions it contemplates. Ruth Marcus, writing in The Washington Post on September 12 summed it up. After giving the President’s plan the benefit of major doubts, she urged Congress to get off the sidelines:

However you assess the blame for the menacing disaster that is the Islamic State, Obama’s plan is the most sensible one under the difficult circumstances. Sensible, but also risky. The air campaign will only work if there are forces on the ground to capitalize on the damage inflicted on the Islamic State. The disappointing performance of the Iraqi security forces and the Kurdish pesh merga so far, and the disorganized state of the Free Syrian Army, make this enterprise far from certain. Obama’s plan is a broad undertaking that could become even broader.

What happens if, a year from now, the Islamic State is bruised but still formidable, perhaps metastasizing to threaten Jordan or Turkey? That the Islamic State is a problem likely to plague the next president, and perhaps the one after that, only underscores the importance of congressional involvement — without waiting for this president to ask nicely.


 

 

 

Blog 45. Ferguson: The Tip of the Iceberg?

For several weeks of August, the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri received massive coverage from the media, nationally and internationally. Although the actions of Brown and Wilson took only a few moments, they exposed long-standing racial tensions that are found not only in Ferguson but in cities around the country. For the moment, relative calm has returned to Ferguson and the city has moved out of the media spotlight. While both of those conditions may change, this may be a time to take stock of what we know and don’t know and to consider the implications of Ferguson for other cities. Continue reading

Guest Blog. Real Reform in College Sports

As regular followers of RINOcracy.com know, our interest sometimes extends to matters beyond the world of politics. One such matter is the current state of top-level college athletics, recently a subject of increasing controversy. We invited a guest blog from an old friend, Roger M. Williams, who has closely followed college athletics while pursuing his long career as journalist, author and editor. He responded with an essay that we think you will find both interesting and thought- provoking.

                                                            *     *     *     *

Real Reform in College Sports

By Roger M. Williams

It’s a contentious time in “Bigtime” college sports, with the spotlight at last shining steadily on a hypocritical and broken system. Never before has the National Collegiate Athletic Association, which controls the system, been under such pressure to reform.http://genius.com/artists/College-football-recaps Continue reading

Blog No. 43, Part II. Afghanistan: More Stupid Stuff On the Way?

One does not have to be Republican—RINO or otherwise—to be critical of President Obama’s foreign policy. It would be sufficient to be a member of what some have described as the “Hillary Clinton wing of the Democratic Party.” In an interview in The Atlantic, Ms. Clinton made an observation that would be widely quoted: “Great nations need organizing principles, and ‘Don’t do stupid stuff’ is not an organizing principle.” The reference to not doing stupid “stuff” was immediately recognized as a quote that White House aides had attributed, in a somewhat saltier version, to President Obama. Continue reading

Blog 44. Congress: Slouching Towards November

We will soon post, as promised, Parts II and III of Blog No. 43 with our thoughts on Afghanistan and Ukraine (and perhaps even a few more on ISIS). Meanwhile, however, the recent activities (and inactivities) of Congress seemed to demand some comment before they are entirely forgotten. When Congress skipped town for its August recess (some things, after all, are sacred), it did so in considerable disarray. Most notable, of course, was the failure to address the problems created by the influx of unaccompanied children at our border with Mexico. But there was no shortage of other issues left unattended. An article in The New York Times noted a few:

The immigration system is still in crisis. Companies are renouncing their American citizenship over tax breaks. The Highway Trust Fund is running on empty as the nation’s infrastructure crumbles, and entitlement programs are creaking under the weight of an aging population.

Given its performance, it is not surprising that public opinion of Congress could hardly be worse. While Obama’s numbers are at an all time low, Congress’s are far lower. According to a recent NBC News/ Wall Street Journal poll only 14 percent approve of the job Congress is doing – the seventh-straight NBC/WSJ poll dating back to 2011 when this rating has been below 15 percent. In addition, “A whopping 79 percent of respondents are dissatisfied with the U.S. political system, including nearly half who are very dissatisfied. The words of Yeats’s “Second Coming,” written in 1919, seem to resonate once again… “Things fall apart; the centre cannot hold….The best lack all conviction, while the worst are full of passionate intensity.” And Congress itself perhaps, is Yeats’s rough beast, slouching not towards Bethlehem but November. Continue reading

UPDATE to Blog 43, Part I: The ISIS Crisis

In Blog 43, Part I, we discussed the ISIS Crisis and the President’s apparent failure to appreciate the seriousness of the situation and to disclose to the public his plan for responding to it. On August 7, nearly eight weeks after his initial statement on ISIS (or ISIL as the President prefers), events forced the President to break his silence and to announce, with visible reluctance, that he had authorized limited military action. Unfortunately, however, his August 7 statement, and amplifications over the two following days, gave little indication that he has yet grasped (or is willing to admit) the extent of the threat that ISIS poses not only to Iraq, and to Americans in that country but to the United States homeland. Continue reading

Special Bulletin. A Tribute to Jim Brady (1940-2014)

I knew Jim Brady before he was famous. Just forty years ago, we were both working at the Department of Housing and Urban Development (where I had sought refuge after concluding that I was no longer comfortable serving in the White House Counsel’s office). Jim held the number two position in Public Affairs and was located across the hall from my office as Deputy General Counsel. Continue reading

Blog No. 43. American Foreign Policy Part I: The ISIS Crisis

As readers of RINOcracy.com are doubtless aware, much has been written about President Obama’s approach to foreign policy and what appears to many, both here and abroad, to have been a projection of weakness. President Obama’s approach to foreign policy—reliance on allies with minimal direct intervention by the United States—is just that, an approach. In the abstract, there is something to be said for Obama’s approach (just as there was to the approach George W. Bush’s in the 2000 campaign when he promised humility in a foreign policy unburdened by nation building.) But an approach to policy is not a policy itself, much less a strategy (a plan to achieve specific goals), and it must be flexible enough to respond to changing threats. Does Obama’s approach have that flexibility? Back on March 16, David Sanger wrote a perceptive analysis in The New York Times, “Global Crises Put Obama’s Strategy of Caution to the Test.” Since that time, as the crises have grown more urgent, the tests have only gotten tougher and it is far from clear that Obama’s “strategy” (more accurately, approach or instinct) is passing them.

At the moment, events in Ukraine have forced the President into engagement and leadership. Considerably aided by the tragic downing of the Malaysian airliner with its many Dutch passengers, he has been successful in persuading European countries to adopt stronger sanctions against Russia than many had thought possible. Nevertheless, effectiveness of the sanctions remains to be seen, and the extent of the Europeans’ commitment, the President’s–and ours–remains uncertain. Equally uncertain are the outlines of an overall strategy for Ukraine and more broadly, Europe. What will Europe and the United States do if the sanctions fail to have the desired result or, worse yet, if Russia takes even more aggressive actions. Is providing Ukraine with arms and other military support a good idea or bad idea? If Putin persists in his apparent attempt to revise the post Cold War map of Europe, do the EU and NATO have the resources and the will to resist? These and related questions will be addressed in a subsequent post, but here we will focus on a crisis that, for the moment, has lost prime attention from the media: ISIS.BLog 43 Iraq_ISIS_Abu_Wahe_2941936b

Continue reading

Blog No. 42. Contraceptive Confusion: The Puzzlements of Hobby Lobby and Wheaton

On June 30, The Supreme Court issued an opinion in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius (collectively Hobby Lobby) invalidating regulations under the Affordable Care Act (ACA) that require that insurance provided by employers cover a broad range of contraceptive medications and devices. The employers in each case objected to coverage for four specific types of contraceptives that they consider to be abortifacients, i.e., causing an abortion. The employers claimed that the requirement to provide that coverage infringed their rights under the Religious Freedom Restoration Act (RFRA). A five-justice majority of the Court agreed in an opinion by Justice Alito. The immediate controversy over the decision was quickly heightened when, three days later,the Court entered a preliminary stay in Wheaton College v. Burwell relieving Wheaton, a Christian college, of complying with an alternative procedure that the Court had appeared to endorse in Hobby Lobby.

In Blog No. 22, “Obamacare and Contraception: Science, Freedom of Religion and Politics,” posted on December 8, 2013, we indicated our support for access to contraception and government programs that provide or facilitate such access; at the same time, we acknowledged having some sympathy for claims of religious liberty. The Blog went on to analyze the legal issues in Hobby Lobby but did not predict or advocate a particular result. Similarly, in this blog, we will not undertake to attack or defend the arguments of either Justice Alito’s majority opinion or the dissents by Justices Ginsburg and Breyer in Hobby Lobby, or the per curiam order (not signed by any individual justices) in Wheaton and Justice Sotomayor’s dissent from the order. Rather, the effort will be simply to point out, and perhaps illumine, some of the puzzlements left by the Court. (If, dear readers, you find some of the sledding here a bit tough, I can only promise you that it is easier than reading the decisions of the Court). Finally, of course, we’ll add a brief word about the political implications of the decisions.

Blog 41 Supreme Court PuzzleWhat Did the Court Hold in Hobby Lobby and Wheaton?

Hobby Lobby. In striking down the regulations at issue, the majority of five justices held that:

  1. RFRA protects the religious liberty of the owners of a corporation operated for profit that is closely held (has a small number of shareholders);
  2. The contraceptive requirement of the ACA placed a substantial burden on the exercise of religion by the corporations’ owners;
  3. The regulations may be assumed to serve a compelling governmental interest in making contraceptives available without cost, but that the interest could be served by means that were less intrusive on the employers’ religious freedom by either a) providing contraceptives directly at government expense, or b) providing contraceptives by the employers’ insurers at no cost to the employers in accordance with an alternate procedure that the ACA regulations had devised for non-profit religious organizations.

Wheaton College. Wheaton objected to complying with the alternate procedure that the Court had appeared to endorse in Hobby Lobby. The Court had described the application of the alternate procedure in Hobby Lobby:

Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements … on the eligible organization, the group health plan, or plan participants or beneficiaries.”

That “accommodation,” the Court concluded, “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Under the regulations, the costs to insurers of providing the coverage would be offset by lower cost from fewer pregnancies or a reduction in fees paid to insurance exchanges.)

Wheaton College, however, objected that making the required certification would itself trigger the provision of the very contraceptive coverage by the insurer that it found offensive to its religious beliefs. Faced with that objection, the Court fashioned something of a compromise. Pending a resolution of Wheaton’s claim on the merits, the Court held that the college need not file the form of certification required by the regulations and that the college’s previous notification of its religious objections would suffice as a notice to the government of its objections. The brief two-page per curiam order provoked a lengthy and vigorous dissent by Justice Sotomayor joined by the other two women justices, Ginsburg and Kagan. (It is not clear how Justice Breyer voted).

Just why the Wheaton order amounted to a compromise was explained by Tom Goldstein in SCOTUSblog.com.   http://www.scotusblog.com/2014/07/where-was-justice-breyer-in-the-wheaton-college-fight/ (Tom is a cofounder of SCOTUSblog. Many other distinguished lawyers and journalists contribute to the blog and it is an invaluable source of opinion and data about the Supreme Court). Tom’s explanation of Wheaton

Formally, Wheaton College sought and received an injunction. But, as a practical matter, it got much less than it wanted because of the accompanying language in the order. Wheaton wanted to be able to refrain from taking any step that would facilitate free contraception for its faculty or students. But the Court’s order states unequivocally that the government can require Wheaton to provide it with notice of its religious affiliation and can on that basis ensure that the same coverage is provided. In other words, the injunction merely frees Wheaton from filling out the government’s “Form 700,” but it still requires Wheaton to accomplish the same result by an arguably less onerous means.  

The Puzzlements

1.) Were the claims of the employers, and the opinion of the Court, in Hobby Lobby, based on a misunderstanding of the relevant science? If so, does it matter?

In Blog 22, we noted that Physicians for Reproductive Health (“Physicians”) had filed an amicus curiae (friend of the court) brief arguing at length that in fact the contraceptive methods complained of were not, as the employers claimed, abortifacients. The opinion in Hobby Lobby was criticized by some as based on an assumption contrary to the consensus of scientific opinion. For example, a column in The Los Angeles Times by Robin Abcarian, “The craziest thing about the Supreme Court’s Hobby Lobby decision,” argued that the employers’ belief was simply not a scientific truth. At a more scholarly level, Cornell Professor Michael Dorf considered at some length whether, or to what extent, “religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions.” The empirical falsity of the employers’ claims, however, is not clear.

Justice Alito addressed the issue briefly:

As we have noted, the [employers] have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n.4, may result in the destruction of an embryo. By requiring the employer to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.

 The footnote referenced by Justice Alito cited FDA-approved product labels that the Physicians’ amicus brief had described as outdated and not reflective of current research. Nevertheless, even the Physicians conceded that, while the methods complained of operated principally to prevent fertilization, at least one method, insertion of a copper IUD, may prevent a fertilized egg (embryo) from being implanted in the uterus, thereby resulting in its destruction. While the Physicians’ amicus brief argued that, according to medical literature, pregnancy (and hence the possibility of an abortion) does not occur until after implantation, that definitional understanding should probably not be seen to control the employer’s religious beliefs.

Moreover, the distinction between contraceptives and abortifacients seems unlikely to be significant in future cases. Within a few days after the Hobby Lobby decision, the Court denied certiorari in three cases wherein courts of appeals had upheld objections by employers to all forms of contraception. (At the same time, the Court remanded for reconsideration, in light of Hobby Lobby, three cases in which employers who objected to all forms of contraception had been denied any relief.)

2.) Did the order in Wheaton conflict with the decision in Hobby Lobby?

Justice Sotomayor and her colleagues Ginsburg and Kagan certainly saw a conflict and Sotomayor’s dissent said so in no uncertain terms:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now… retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

The per curiam order of the majority made no attempt to respond to that (or any other) argument made by Justice Sotomayor. In Hobby Lobby, the court had left itself an escape hatch by cautioning that “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims,” and cited the pending claim in Little Sisters. That caveat, however, hardly sufficed to explain what struck not only the dissenters but many observers, as a rather abrupt about-face.

If there is not a real conflict, it is perhaps because, as Tom Goldstein has suggested, the majority believed that the difference between filing a form and providing another form of notice “is material in terms of the entity’s religious objections, but is not material in terms of whether the coverage is available.” Nevertheless, the majority had to know that, at a minimum, its Wheaton order would cause confusion among the public and, no doubt, much of the bar.

3. Will women be denied access to contraceptives without cost as a result of the Hobby Lobby decision and the Wheaton injunction?

Probably not, at least in the case of women employed by the for-profit corporations covered by the Hobby Lobby decision. The majority opinion in that case clearly assumed they would not be denied such access. On the other hand, the complexity of the regulatory scheme under the ACA means that applying the alternate procedure to for-profits is not a slam dunk. For example, an article in The New York Times on July 4, “Obama Weighs Steps to Cover Contraception,” http://www.nytimes.com/2014/07/05/us/politics/obama-weighs-steps-to-cover-contraception.html?emc=eta1 outlined some of the administrative difficulties confronting the Administration in attempting to implement the Court’s decision. One curious aspect of the decision in Hobby Lobby is that neither party had urged the application of the alternate procedure or briefed it. The Court could have remanded the case to the lower courts for consideration of the issue, or at least asked the parties for briefing and argument, but it did neither. Consequently, the Court was on its own in deciding that the procedure was not only sound in theory but feasible in practice. Nevertheless, given the strong motivation of the Administration to provide coverage, and the likely desire of the Court to validate its assumption in Hobby Lobby, it is likely that in the end an acceptable solution will be devised.

In the case of women employed by non-profit religious organizations, the answer could be less clear. The per curiam order in Wheaton expressly stated that “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.” In contrast, however, Justice Sotomayor’s dissent in Wheaton described administrative problems that she perceived and concluded that the government’s task was “daunting — if not impossible.” Moreover, there may be differences among different religious organizations depending on the nature of their insurance arrangements. Prior to the rulings in Hobby Lobby and Wheaton, the Court had granted a stay in Little Sisters of the Poor v. Sebelius that, just as Wheaton later would, provided an exemption from filing the prescribed form but required a written declaration of the employer’s written objection on religious grounds. Justice Sotomayor’s dissent in Wheaton argued that a crucial difference lay in the fact that in the earlier case the “third-party administrator was a ‘church plan’ that had no legal obligation or intention to provide contraceptive coverage.”

Finally, the eventual decisions on the merits in Wheaton and Little Sisters might or might not adopt the compromise remedies provided at their preliminary stages. The religious employers will probably insist that the provisional remedies granted them are inadequate. We believe, however, that the majority’s stated assumptions of continuing access to coverage will remain intact. If so, there would seem to be no basis for the claim of some that the Court had sacrificed the religious rights of employees. (Beyond that, others have observed that there is probably no established religion whose tenets demand the provision of contraceptives on demand.)

4. Was the decision in Hobby Lobby a narrow one or, as Justice Ginsburg’s dissent claimed, “a decision of startling breadth”?

The short answer is that only time will tell. Justice Alito took some pains to try to allay the fears of the dissent as to implications of the opinion in future cases.

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.

The fears expressed by the dissent may well be exaggerated, but at this point there is no basis for confident predictions concerning future attacks on ACA coverage.

It may be noted that some commentators have posited even more far-reaching concerns. For example, it has been suggested that while Hobby Lobby involved only closely held corporations, it could be expanded to apply to publicly held corporations. Moreover, it has even been supposed that such corporations might then assert religious objections to compliance with environmental laws or the minimum wage. We believe, however, that such scenarios are fanciful and far-fetched, both as to what corporations would attempt and what the Supreme Court would sustain.

The Politics

In Blog No. 22, we had noted conspicuous support by Republicans for the employers case in Hobby Lobby and we cautioned that, if the employers should prevail, Republicans should avoid crowing. That was good advice and, after a giddy day or two, it is a course that they have largely followed. It seems to be generally recognized that, to the extent the decisions in Hobby Lobby and Wheaton have a political impact, it is likely to favor Democrats.

Simply put, while Hobby Lobby and Wheaton may be applauded by a large portion of the Republican base, the decisions are not likely to send many to the polls in celebration or gratitude. For Democrats, however, the decisions produced by Republican appointees to the Court will, fairly or unfairly, fit nicely in their narrative of a “War on Women,” a narrative that will no doubt attract some women voters.

Blog No. 41. The Mess at the Border (and in Washington).

The surge of unaccompanied children from Central America across our southern border has produced what is generally recognized to be a mess. Sadly, it has been accompanied by the familiar mess in Washington with the usual antagonists, the Administration and Congress, Republicans and Democrats, struggling over how to respond. And the border crisis appears to have made the goal of “comprehensive immigration reform” more elusive than ever.Children-at-border Continue reading