tag:blogger.com,1999:blog-80142600345949223312024-03-24T19:32:22.579-04:00Will HuhnWilson Huhn blogs regularly here on on a variety of topics including constitutional law, health care financing reform, income inequality, Abraham Lincoln, and the Civil War. Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.comBlogger195125tag:blogger.com,1999:blog-8014260034594922331.post-60445475603149081912017-08-05T21:40:00.001-04:002017-08-05T21:40:17.034-04:00Is Trump Right in Asserting that the Foreign Sanctions Statute is Unconstitutional? Yes and No.On August 2, President Trump signed <a href="https://www.whitehouse.gov/legislation/hr-3364-countering-americas-adversaries-through-sanctions-act" target="_blank">H.R. 3364</a>, the "<a href="https://www.whitehouse.gov/legislation/hr-3364-countering-americas-adversaries-through-sanctions-act" target="_blank">Countering America's Adversaries Through Sanctions Act</a>," a law imposing sanctions on Iran and North Korea and prohibiting the President from lifting existing sanctions on Russia. However, President Trump also issued a signing statement (actually <i>two </i>signing statements) in which he asserted that the law was unconstitutional. Was he right?<br />
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In part the President is correct: the provision of H.R. 3364 that declares that it is the policy of the United States not to recognize Russia's sovereignty over Crimea and eastern Ukraine is unconstitutional. The Supreme Court has ruled that the Constitution implicitly gives the President has the sole power to recognize what territories are subject to foreign governments. In contrast, the sanctions imposed by Congress on Russia on account of its actions in Ukraine and the limitations on the President's power to lift those sanctions are constitutional, because the Constitution expressly vests Congress with the power to regulate foreign commerce.<br />
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<a name='more'></a>H.R. 3364 was adopted in part to stop President Trump from lifting sanctions that President Obama imposed upon Russia after Russia invaded Ukraine and seized the Crimean Peninsula, incorporating Crimea into Russia. At the time of the Russian invasion and the Russian-controlled Crimean plebiscite, it was reported that President Obama told Vladimir Putin that the United States would "never" recognize Russian sovereignty over Crimea. Richard Wolf, <i><a href="https://www.usatoday.com/story/news/politics/2014/03/16/russia-crimea-ukraine-referendum-sanctions/6493837/" target="_blank">Obama to Putin: U.S. Will Never Recognize Crimea Vote</a></i>, (USA Today, March 14, 2014). Three days later, in his <a href="https://obamawhitehouse.archives.gov/the-press-office/2014/03/17/statement-president-ukraine" target="_blank">statement announcing the sanctions on Russia</a>, President Obama stated:<br />
<blockquote class="tr_bq">
<span style="font-family: "times new roman" , serif; font-size: 12pt; letter-spacing: 0.1pt;">But throughout this process, we’re going to
stand firm in our unwavering support for Ukraine. As I told Prime
Minister Yatsenyuk last week, the United States stands with the people of
Ukraine and their right to determine their own destiny. We’re going to
keep working with Congress and our international partners to offer Ukraine the
economic support that it needs to weather this crisis and to improve the daily
lives of the Ukrainian people.</span></blockquote>
In <a href="https://www.whitehouse.gov/the-press-office/2017/08/02/statement-president-donald-j-trump-signing-countering-americas" target="_blank">his more informal signing statement to H.B. 3364</a>, in which the President expressed his personal feelings about the bill, President Trump signaled that he considered Russia's invasion of Ukraine to be in a completely separate category from that of the actions of Iran and North Korea. The President expressed "hope" for improvement of relations with Russia, in contrast to the "dangerous," "destabilizing," and "malignant" activities of Iran and North Korea. The President stated:<br />
<blockquote class="tr_bq">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Yet
despite its problems, I am signing this bill for the sake of national unity.
It represents the will of the American people to see Russia take steps to
improve relations with the United States. We hope there will be
cooperation between our two countries on major global issues so that these
sanctions will no longer be necessary.</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Further,
the bill sends a clear message to Iran and North Korea that the American people
will not tolerate their dangerous and destabilizing behavior. America
will continue to work closely with our friends and allies to check those
countries’ malignant activities.</span></blockquote>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">I find President Trump's lack of concern over the Russian invasion of Ukraine and annexation of its territory deeply disturbing. And what of Russian control over Transnitria? What of the Russian invasion into Abkhazia and South Ossetia? What of Russia's persistent interference in our elections, including the election that elevated Donald Trump to the Presidency? What of Russia's undermining of our National Security Adviser H.R. McMaster? (Business Insider reported yesterday that "</span><span style="font-family: "Times New Roman", serif; font-size: 12pt;">Twitter
accounts that have been linked to Russian influence operations have jumped on
the anti-McMaster bandwagon.") Natasha Bertrand, <i><a href="http://www.businessinsider.com/hr-mcmaster-steve-bannon-russia-trolls-2017-8" target="_blank">The Knives Are Coming Out for McMaster</a></i> (Business Insider, August 4, 2017). Are these actions not dangerous? Are they not destabilizing? Are they not malignant? President Trump's signing statement regarding H.R. 3364 and his silence regarding Russian undermining of our chief national security officer are yet more evidence of Trump's alliance with the murderous and dictatorial regime of Vladimir Putin.</span></div>
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<span style="font-family: "Times New Roman", serif; font-size: 12pt;">But this is not to say that the President is entirely wrong about the constitutionality of H.R. 3364. </span><span style="font-family: "Times New Roman", serif; font-size: 12pt;">In the more lawyerly signing statement, the President contended that H.B. 3364 violates the Constitution because it infringes upon the President's power to recognize foreign governments. This second signing statement asserts:</span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
its haste to pass this legislation, the Congress included a number of clearly
unconstitutional provisions. For instance, although I share the policy
views of sections 253 and 257, those provisions purport to displace the
President's exclusive constitutional authority to recognize foreign
governments, including their territorial bounds, in conflict with the Supreme
Court's recent decision in <i>Zivotofsky v. Kerry</i>.</span></blockquote>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In <i><a href="https://supreme.justia.com/cases/federal/us/576/13-628/" target="_blank">Zivotofsky</a> </i>the Supreme Court reaffirmed the longstanding principle that the President, and the President alone, has the power to recognize foreign governments, and that a necessary adjunct to that power is the power to determine over what territory that government is sovereign. (A link to a Supreme Court Review podcast reporting on the Court's decision in <i>Zivotofsky </i>is available <a href="http://supremecourtreview.com/default/podcast/view/id/114" target="_blank">here</a>.) The textual support for the President's recognition power is slim; it is derived from the clause in the Constitution granting the President the power to "receive ambassadors." Nevertheless, there is a longstanding tradition dating back to George Washington that this is the sole prerogative of the President. Trump is correct that the President, and the President alone, has the power to determine whether Crimea belongs to Russia or Ukraine.</span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">However, President Trump is incorrect in concluding that Congress therefore lacks the power to impose sanctions on Russia, and to restrict the power of the President to lift those sanctions. In contrast to the President's implied recognition power and power over foreign affairs, the Constitution explicitly grants Congress the power to regulate commerce with foreign nations. In fact, in granting this power the Commerce Clause mentions foreign commerce first, before interstate commerce:</span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Congress shall have power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."</span></blockquote>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In the seminal case <i><a href="https://supreme.justia.com/cases/federal/us/22/1/case.html" target="_blank">Gibbons v. Ogden</a> </i>(1824) the great Chief Justice John Marshall described "the power to regulate commerce" in these terms:</span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">We
are now arrived at the inquiry -- What is this power?</span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">It
is the power to regulate, that is, to prescribe the rule by which commerce is
to be governed. This power, like all others vested in Congress, is complete in
itself, may be exercised to its utmost extent, and acknowledges no limitations
other than are prescribed in the Constitution. </span></blockquote>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Should he choose, President Trump has the power under the Constitution to recognize Russia as having sovereignty over Crimea or other lands it has unlawfully seized in Europe and Georgia. But Congress has the power to impose economic sanctions on Russia for those acts of war, and to limit the President's power to lift those sanctions.</span></div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-7824645899851542152016-10-23T22:56:00.001-04:002016-10-23T22:56:52.515-04:00Clinton, Trump and the War on WomenFor many years Democrats have claimed that Republicans have been waging a "war on women." Republicans have angrily rejected both the metaphor and the reality behind it. With the ascendancy of Donald Trump as the leader of the Republican Party, the reality of the war on women can no longer be denied. I had thought that this election was like all the others I have lived through - a dispute over policy. But it is more, much more. It was only recently that I realized the true significance and scope of this election. It is no less than a revolution - a watershed in the history of the human race.<br />
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<a name='more'></a>For me, an older straight white male who is more a less a policy nerd, the "war on women" stood for a number of legal doctrines and laws -- some that have a disproportionate impact on women such as minimum wage, collective bargaining, family leave, and universal health care, and others directly addressing gender equality such as equal pay, access to contraception, abortion rights, transgender rights, and marriage equality.<br />
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But after 16 months of of Donald Trump's aggressive assault on women's personhood and dignity I now believe that this election stands for so much more. It is nothing less than the culmination of a movement for full equality - a recognition of women's worth and independence. The New Yorker cover captures this beautifully:<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEib3Ea8CNrjpBmViQFSXofJYyeZ4kVhQXTIFWq4DTHXhQ31RIH_NaHUAyroxPbbg4NpvEt-6cE5bvrlgAEBeARezJyxCVHnfQiX43SV8K9o5SxS4rZIsGEdqi38xM0-LqobdFrnBPaUgUmk/s1600/New+Yorker+Cover+Clinton+Trump.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEib3Ea8CNrjpBmViQFSXofJYyeZ4kVhQXTIFWq4DTHXhQ31RIH_NaHUAyroxPbbg4NpvEt-6cE5bvrlgAEBeARezJyxCVHnfQiX43SV8K9o5SxS4rZIsGEdqi38xM0-LqobdFrnBPaUgUmk/s320/New+Yorker+Cover+Clinton+Trump.jpg" width="320" /></a></div>
Hillary Clinton is a brilliant, hardworking woman, a person who is dedicated to protecting women, children, immigrants, racial and ethnic minorities, and persons with disabilities -- a public servant who has successfully fought for all of these groups her entire adult life.<br />
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Donald Trump has fought for no-one but himself his entire adult life. He has accumulated wealth by bilking people -- gamblers at his casinos, building contractors at his properties, and students at his phony "university." His personal life is abominable -- he brags about his affairs, and has abandoned two sets of wives and children. He rose to political fame by denying that our President was born in this country, by threatening to deport 12 million people, and by defaming all of his political opponents in the most vulgar and demeaning ways.<br />
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The defining moment of this campaign -- when was it? Trump's "grab her by the pussy" statement on the bus? His "nasty woman" comment at the debate? His threat that he will not concede the election to Clinton if he loses? For me, the defining moment came a few days ago at an academic conference when a woman I have known and admired for over 30 years came to the front of the audience and told everyone that when she was an undergraduate she was raped by a professor. After the program she told me, "Well, I'm 60 years old now, and I guess it was time to talk about it." Donald wasn't the rapist, but he sure brought back the memories. This is what we are really fighting against.<br />
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Sixteen Republican opponents -- governors, senators, and other well-known leaders -- could not defeat Trump. They all succumbed to his bullying and his lies. Why? Because they did not have the courage to stand up to him. They could not call him what he is -- a racist, xenophobic misogynist. They could not attack him on those grounds because there are so many Republican voters -- perhaps as many as 40% of the Republican Party - who love and admire Trump precisely because he is a racist, xenophobic misogynist. Even now most of the Republican leaders cannot bring themselves to vote against Trump, or even to speak out forcefully against him, not because they are bigots themselves, but because they do not want to alienate the bigoted voters whom they rely upon to get elected.<br />
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Now Clinton has Trump on the ropes and is about to finish him off. She will have done what the Republicans could not do. In so doing she will lead us all to victory in the War on Women.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com5tag:blogger.com,1999:blog-8014260034594922331.post-5500947822623564112016-10-12T11:02:00.000-04:002016-10-12T11:02:00.217-04:00What Should Republicans Do Now?What can the Republican Party do to redeem itself from the racism, sexism, and xenophobia of Donald Trump? In a discussion on 538 entitled "<a href="http://fivethirtyeight.com/features/is-this-what-it-looks-like-when-a-party-falls-apart/" target="_blank">Is This What It Looks Like When a Party Falls Apart</a>," Nate Silver said, "This isn't just a crisis of party leadership. It's a crisis of the party's voters." Trump is enthusiastically supported by about 40% of Republicans. Republican voters nominated Trump <i>because </i>of his racism, sexism, and xenophobia. He rose to political prominence by loudly proclaiming that Barack Obama is not a citizen and launched his presidential campaign by rudely calling undocumented Mexican immigrants "rapists." The vicious misogyny of Trump recently displayed on tape has been obvious throughout the campaign ("Blood coming out of her ... wherever."). Most Republicans are appalled by him, but what can they do? I have six suggestions for what they can do as individuals, but I'm not at all sure they can salvage the Republican Party.<br />
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<a name='more'></a>If you are a Republican who hates what Trump stands for, here is what you can do.<br />
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<b>1. Turn off the right-wing propaganda machine. </b>Stop listening to Rush Limbaugh, Ann Coulter, Michael Savage, Bill O'Reilly, and other hate-mongers. Fiscal conservatives and limited-government Republicans looked the other way while these demagogues spewed their poison; now the followers of these ministers of hate constitute a plurality of the party. The propagandists paved the way and laid the foundation for Trump to take over the Republican Party. To take back the party decent Republicans will have to denounce and dislodge them, and Republicans must<br />
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<b>2. Turn away from insults and characterizations.</b> For far too long my Republican friends have cheerfully relied on <i>ad hominem </i>attacks to advance their agenda. They sneer when they use the word "liberal." A person who supports women's rights is a "Feminazi." Anyone who believes in climate change is an "alarmist." They even refuse to use the correct name of the political party to which I proudly belong. (Hint - it's the "Democratic Party," not the "Democrat Party.") If you cannot muster a modicum of respect for persons with whom you disagree, then dialog is impossible and compromise is unthinkable. Instead of trumpian demagoguery, in formulating public policy Republicans must<br />
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<b>3. Embrace science and economics. </b>Public policy must be placed upon a sound foundation. We cannot develop sound fiscal, monetary, regulatory or foreign policy without the assistance of experts who generate models and predictions based on research that is both sound and reliable. For example, the Affordable Care Act was designed by experts in economics and public health. The proponents of the Act based their support on those models and predictions, while the opponents of the Act invoked ideology and simplistic generalizations ("government bad - private enterprise good!"). Nor is religion a sound guide to public policy; Republicans must<br />
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<b>4. Confine religion to its proper role. </b>A political party that rejects the theory of evolution, upon which all of the biological sciences rest, cannot rationally develop an environmental and energy policy that will protect life on Earth. Instead such a party is easy prey for billionaires who greedily seek to protect the interests of the fossil fuel industry. Religion has nothing to offer in terms of describing the world as it is or as it will be if certain policies are adopted. Religion isn't science, and it isn't economics. This is not to say that religion has nothing to offer; quite the contrary. In its proper sphere religion is a boon. Religion is a great comfort to most of the world's population. It gives people a sense of belonging and strengthens communities. Universal religious beliefs - that all persons are worthy and valuable in the sight of God - promote kindness, tolerance, and empathy. I only wish that Republicans would invoke those universal concepts to<br />
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<b>5. End the crusade against "political correctness." </b>To return to my original point, the Republican Party's criticism of "political correctness" is now exposed for what it has always been -- a campaign of misogyny and white nationalism. My Republican friends have often accused me of engaging in "identity politics." Hello! The Republican Party is 95% white, and 90% of its elected officials at the federal level are males. The Democratic Party has Whites, Blacks, Latinos, Asians, straights, gays, transgender people, Christians, Jews, Muslims -- everyone is welcome, and 33% of its federal elected officials are women. Just which political party do you think is engaging in "identity politics"? What are Republicans willing to do to attract African-Americans to the Republican Party? What are Republicans willing to do to make Latinos feel welcome in the Republican Party? What are Republicans willing to do to encourage women to vote Republican, and to elect Republican women to office? Here's a hint -- stop screaming about how disgusted you are at "political correctness." That attitude has brought you Donald Trump. If you hate "political correctness" then you must love Trump because he sure isn't politically correct!<br />
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It may be too late for the Republican Party. Too many members of the Party are infected with hatred, bigotry, and ignorance, and Donald Trump has done his best to push them further down this dark road. Decent Republicans have rejected Trump but they have nowhere to go. But there is something they can do. When Hillary Clinton assumes the office of the Presidency, Republicans should<br />
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<b>6. Act the part of the loyal opposition. </b>For the last eight years the Republican Party has opposed the President at every turn. In 2008 its congressional leaders made a conscious decision to act as if Barack Obama were not the President, or even to treat him with minimal respect. They have made no effort to compromise with Democrats -- <i>e.g.</i>, the "Hastert Rule," in effect meaning that Republican members of Congress would not even speak to their Democratic colleagues -- nor was there any effort to govern for the good of the country. Instead the Republicans' only agenda was to thwart the President at every turn. As a result, the Republican Party abandoned both principle and policy, and it has destroyed itself, and that's a shame. The two-party system is necessary to good government. When our elected leaders prove to be venal or incompetent it is the turn of the loyal opposition to replace them. If the Republican Party had acted like the loyal opposition - if it had confirmed public officials and judges in a timely manner, if it had compromised on the budget and responded appropriately to foreign emergencies -- then it would be in a position to assume the reins of power once again.<br />
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Earlier this year the Republican Party succumbed to Donald Trump. The Democratic Party is now on the verge of defeating Trump. Will the Republican Party rise again as the great political institution that it has been for 150 years, or will it continue to sink into a morass of ignorance and hatred? Democrats like me are powerless to do anything about this. It is up to the many millions of decent Republicans to restore their party to goodness and greatness.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-81933385501367398162016-05-16T13:10:00.001-04:002016-05-16T13:10:17.529-04:00Supreme Court's Decision in Zubik v. BurwellLast December I wrote a <a href="http://www.wilsonhuhn.com/2015/12/analysis-of-little-sisters-of-poor-v.html" target="_blank">loooonnnngggg post</a> about the issues in <i>Zubik v. Burwell</i>, the contraceptive mandate case. This case promised to be one of the most significant decisions of the Supreme Court's 2015-2016 term. Today, the case closed softly, in what the media is calling a "compromise" resolution. (Today's decision of the Court in <i>Zubic v. Burwell </i>is available <a href="http://www.supremecourt.gov/opinions/15pdf/14-1418_8758.pdf" target="_blank">here</a>.) But make no mistake -- the winners are employees who are now guaranteed contraceptive coverage at no cost.<br />
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<a name='more'></a>The Affordable Care Act requires employer-sponsored health insurance to cover preventive care at no cost to their employees, and the Department of Health and Human Services categorized contraception as a form of preventive care. In the <i>Hobby Lobby </i>case, decided in 2014, two family-owned for-profit corporations challenged the birth control mandate under the federal Religious Freedom Restoration Act. Those companies won. The Supreme Court ruled that it would be a "less restrictive alternative" for the employer to give this notice to their insurance companies and for those insurers to provide the coverage free of charge, rather than requiring the employer to purchase such coverage from their insurers. The Court ruled in favor of the private employers by a vote of 5-4, Justice Scalia voting with the majority.<br />
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In this case, <i>Zubic v. Burwell</i>, the "opt-out" procedure itself is being challenged as a violation of the Religious Freedom Restoration Act.<br />
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Churches and their integrated organizations are exempt from the birth control mandate, but independent religious nonprofits need to request an exemption by filing a form ("Form 700") with their insurer or with the government. The Little Sisters of the Poor and a number of other independent religious nonprofits objected to this "opt-out" procedure, contending that this made those organizations "complicit" in the sin of providing access to birth control. They filed suit under the federal Religious Freedom Restoration Act essentially arguing that there must be a "less restrictive alternative" that would not even require them to take the step of notifying the government of their religious objections to contraception.<br />
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Justice Antonin Scalia passed away the night of February 12-13.<br />
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Oral argument on March 23 in this case was contentious; it was difficult to predict how the Court would resolve the case.<br />
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On March 29, 2016, the Supreme Court issued an unusual order in <i>Zubik</i>. The Court required the parties to submit supplemental briefs addressing whether it would satisfy the statute if the employer simply notified the insurer at the time that it purchased the insurance that the employer had a religious objection to contraception and that the employer did not want coverage for contraception included in the plan. In such a case, as in <i>Hobby Lobby</i>,<i> </i>the insurer would then have to provide birth control coverage at not charge to the employees by means of a separate plan.<br />
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In their supplemental briefs both the government and the religious nonprofits agreed that such a solution would be acceptable -- that it would be a less restrictive alternative -- but both parties then sought to "clarify" all of the problems with that solution. This morning the Supreme Court ruled that since the parties had essentially consented to this procedure, it meant that it was unnecessary for the Court to rule on the matter, and it remanded the case to the lower courts to hammer out the details of the settlement. In that sense the religious nonprofit organizations won -- the compromise procedure is in effect a "less restrictive alternative" to Form 700.<br />
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However, I think that this has to be regarded as a clear victory for the employees of the religious nonprofits. In the course of its decision today, the Supreme Court stated that any compromise must guarantee employees' rights under the Affordable Care Act to free access to birth control. The Court stated:<br />
<blockquote class="tr_bq">
"Nothing in this opinion, or in the opinions or orders of the
courts below, is to affect the ability of the Government to ensure that women
covered by petitioners’ health plans 'obtain, without cost, the full range of
FDA approved contraceptives.'"</blockquote>
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In my opinion it was a strategic mistake for the religious nonprofits to consent to the Court's proposed solution. They should have forthrightly objected to this solution and rolled the dice. They chose to be clever -- too clever by half -- and while they may have "won" in the sense that they won't have to file Form 700, they still have to notify their insurer of their religious objection to contraception, triggering the insurer's obligation to provide that coverage free of charge.</div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com3tag:blogger.com,1999:blog-8014260034594922331.post-24776845823742791802016-05-14T19:32:00.001-04:002016-05-14T19:41:37.683-04:00Why I Do Not Support Bernie Sanders for the Democratic NominationI have several reasons for opposing Bernie Sanders as the Democratic nominee for President.<br />
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<a name='more'></a><b>1. Economic policies: the numbers don't add up.</b> Bernie's economic policies are based on false assumptions. Four previous Chairpersons of the Council of Economic Advisors -- Alan Krueger, Austan Goolsbee, Christina Romer, and Laura Tyson, issued an <a href="https://lettertosanders.wordpress.com/2016/02/17/open-letter-to-senator-sanders-and-professor-gerald-friedman-from-past-cea-chairs/" target="_blank">open letter</a> on February 17, 2016 warning that Sanders' economic policies were as "fantasical" as those of supply-side Republicans. They warned:<br />
<blockquote class="tr_bq">
"We are concerned to see the Sanders campaign citing extreme
claims by Gerald Friedman about the effect of Senator Sanders’s economic
plan—claims that cannot be supported by the economic evidence. Friedman asserts
that your plan will have huge beneficial impacts on growth rates, income and
employment that exceed even the most grandiose predictions by Republicans about
the impact of their tax cut proposals.<br />
As much as we wish it were so, no credible economic research
supports economic impacts of these magnitudes. Making such promises runs
against our party’s best traditions of evidence-based policy making and
undermines our reputation as the party of responsible arithmetic. These claims
undermine the credibility of the progressive economic agenda and make it that
much more difficult to challenge the unrealistic claims made by Republican
candidates."</blockquote>
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The conclusions of these leading economists have been supported by Nobel prizewinner <a href="http://www.nytimes.com/2016/02/19/opinion/varieties-of-voodoo.html" target="_blank">Paul Krugman</a> and Pulitzer Prizewinner <a href="https://www.washingtonpost.com/news/wonk/wp/2016/03/14/can-bernie-sanders-turn-the-united-states-into-denmark-an-investigation/" target="_blank">Steven Pearlstein</a>. Clinton's economic proposals are not only extensively detailed, they are also "supported by economic evidence," unlike Sanders' policies.. </div>
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<b>2. Health Care Policy: the "public option" is not politically feasible</b>. Sanders' health care policy prescriptions are not feasible at this time. The Vermont Senator supports a single-payer system, "Medicare for All," which is fine in theory but impracticable to implement. The theory is that if the government paid for all health care, we could do away with private health insurance companies, which would save money because it would eliminate the cost of profits, administrative costs and advertising spent by insurance companies. There are two practical problems with this theory. First, in our health care system the insurance companies ration health care; they are the ones who say "no" to expensive or unnecessary care. In Europe the government plays that role of gatekeeper. Someone has to play that role. It is one thing to do away with private health insurance; it is another to establish government agencies that will decide what our society is willing to pay for and what it is not. It is not responsible to create a "public option" that lacks economic controls. The second problem with implementing "Medicare for All" is that it would require a monstrous increase in taxes to pay for it. Sanders rightly points out that the premiums that employers currently pay and the co-payments that individual workers currently pay would be eliminated, and he estimates that these savings would be greater than the tax increases necessary to pay for "Medicare for All." Suppose that is true. It would still require Americans to pay vastly more in taxes than they do now, and in light of the fact that employers currently pay for most people's health insurance, most working Americans would pay far more in taxes than they would save in health care co-payments. This is the conclusion that Vermont -- Senator Sanders' own state -- came to. The Affordable Care Act of 2010 gave states the option of creating a "public option" using the funds that the people of the state would otherwise be entitled to under the Act. State of Vermont studied the "public option" for four years, and on December 30, 2014, Governor Peter Shumlin issued a report in which he stated:</div>
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"I have supported a universal, publicly financed health care
system my entire public life, and believe that all Vermonters deserve health
care as a right, regardless of employment or income. Our current way of paying
for health care is inequitable. I wanted to fix this at the state level, and I
thought we could. I have learned that the limitations of state-based financing
– limitations of federal law, limitations of our tax capacity, and sensitivity
of our economy – make that unwise and untenable at this time."</blockquote>
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If the State of Vermont believes that the public option is "unwise and untenable" at this time, it is difficult to conceive why Senator Sanders is so insistent that it should be the model for the American health care system. If organizations such as the National Association of Manufacturers and the United States Chamber of Commerce were willing to support single-payer as a way of helping employers to escape responsibility of paying for health care, then the proposal might stand a chance. Short of that, it's a pipe dream. Americans just aren't willing to trade health care premiums for taxes. For now, let's continue to broaden and improve the Affordable Care Act. Let's follow the example of the Obama administration, as Hillary Clinton would.</div>
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<b>3. Anger. </b>I don't care for Sanders' attitude. He is constantly angry. He is constantly yelling. He is constantly castigating certain elements of society as the source of all our ills. He never engages in a calm, respectful discussion of policy, recognizing that the people with whom he disagrees may have just as much information and just as much integrity as he does. No, if someone disagrees with his conclusions, that person is misguided, they are disingenuous, they are corrupt. Remind you of anyone? Donald Trump does not have a monopoly on anger and scapegoating this year. Now, Trump is a racist, misogynist, zenophobic, religious bigot -- he is infinitely worse than Bernie Sanders, and I would work to the utmost to defeat Donald Trump regardless of whether the nominee is Clinton or Sanders. But Sanders' attitude puts me off.</div>
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<b>4. His past support for communist governments.</b> Forty years ago, in the 1970s and 1980s, Bernie Sanders made many public statements praising the culture and the governments of communist countries like Cuba and Nicaraugua. See these stories in <a href="http://www.slate.com/articles/news_and_politics/politics/2016/02/bernie_sanders_radical_past_would_haunt_him_in_a_general_election.html" target="_blank">Slate</a>, <a href="http://theweek.com/articles/611815/how-bernie-sanders-stepped-fidel-castro-cuba" target="_blank">The Week</a>, and the <a href="http://nypost.com/2016/01/16/dont-be-fooled-by-bernie-sanders-hes-a-diehard-communist/" target="_blank">New York Post</a>, In 1980 Sanders served as a delegate to the Socialist Workers Convention. This was at a time when our country was fighting a worldwide Cold War against communism. Sanders has not renounced his prior views and affiliations, and in any event it is too late for him to do that effectively. Few Americans of my generation could enthusiastically support anyone who so frequently and vociferously expressed these views. Again, he is much better than Trump. But he is much worse than Clinton. </div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-67811545654506667442016-05-08T08:32:00.001-04:002016-05-08T08:35:00.855-04:00Clinton/Trump (3): The Race as of May 8, 2016The latest national polls give Hillary Clinton an average of a seven-point lead on Donald Trump. How would this affect the electoral map and control of Congress?<br />
<a name='more'></a>Here are the last six polls reported on <a href="http://elections.huffingtonpost.com/pollster/2016-general-election-trump-vs-clinton" target="_blank">Huff Post</a>:<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjK95u8HStRO6kO3VuhnUlyaHwqU4hSfG-yZRw21tOiaGP92eJy0C4d73jV0w_IRy2oEX_0eZzcvQMoabACXmEynvHfaza2WPzdOjr0IfEobp-fdg1C1WE-Vny6OtFgSLjl-NEdniBezFsS/s1600/May+8+polls.JPG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="208" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjK95u8HStRO6kO3VuhnUlyaHwqU4hSfG-yZRw21tOiaGP92eJy0C4d73jV0w_IRy2oEX_0eZzcvQMoabACXmEynvHfaza2WPzdOjr0IfEobp-fdg1C1WE-Vny6OtFgSLjl-NEdniBezFsS/s640/May+8+polls.JPG" width="640" /></a></div>
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Throwing out the highest and the lowest scores (CNN Clinton + 13 and Rasmussen Trump + 2), the average of the remaining polls shows Clinton at + 7. This is the same margin that Barack Obama won by over John McCain in 2008 -- 52% to 45%. Here are the states that Obama won in 2008:</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhRO7B0F5H3tYTxZ2O1mbfb_8GgttjdU-fprT7YvhIqA3tUtBcDbOVt25FUL34DmlDR-BxOX-esdBQPENlsqAFkqtZdnPqKjnvvOWX7lXABZCb0XJ3LuVjuSpZ9mbAtxbLlRYz7O1VQctwt/s1600/2008-electoral-college-results1-1.gif" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="464" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhRO7B0F5H3tYTxZ2O1mbfb_8GgttjdU-fprT7YvhIqA3tUtBcDbOVt25FUL34DmlDR-BxOX-esdBQPENlsqAFkqtZdnPqKjnvvOWX7lXABZCb0XJ3LuVjuSpZ9mbAtxbLlRYz7O1VQctwt/s640/2008-electoral-college-results1-1.gif" width="640" /></a></div>
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Several of these states went for the Republicans in 2012, when Obama beat Romney by only 3%, 51% to 48%. Here is the Electoral map in 2012:</div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgmTjI5XClDSSPAk5bmnjXjFC3IigIydjNsKyRy__lfUwNKMC_GLqqXYo__TaJTSbH-x1H5ElZohKyrSuvroHh9L8MVZ8rd1LQLcHvPGEnn5P6betpFLTIu4lJFrGLPH65wMuR-YHowI_OW/s1600/Electoral+Map+2012.JPG" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="268" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgmTjI5XClDSSPAk5bmnjXjFC3IigIydjNsKyRy__lfUwNKMC_GLqqXYo__TaJTSbH-x1H5ElZohKyrSuvroHh9L8MVZ8rd1LQLcHvPGEnn5P6betpFLTIu4lJFrGLPH65wMuR-YHowI_OW/s640/Electoral+Map+2012.JPG" width="640" /></a></div>
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A seven-point national margin for Clinton would put Missouri, North Carolina, and Arizona back in play for the Democrats, and would make Pennsylvania, Ohio, Colorado, Virginia, and Florida -- all of which Obama won by 5% or less in 2012 -- safer for the Democrats. </div>
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In the Senate races in 2008, Democrats defeated five Republican incumbents and won three open seats previously held by Republicans, and in the House of Representatives Democrats gained 21 additional seats. Similar results this year would give the Democrats control of the Senate by a margin of 54-46, but would leave Republicans in control of the House by a narrower margin, 225-210. Should the Supreme Court strike down partisan gerrymandering next year, the <a href="http://www.dailykos.com/story/2015/6/29/1394141/-Republicans-rigged-the-House-through-gerrymandering-Democrats-can-fight-back-at-the-ballot-box" target="_blank">most conservative estimate</a> I have seen would give Democrats 9 additional seats in the House, resulting in a 219-217 majority.</div>
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Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-29237462078873863172016-04-30T05:13:00.000-04:002016-04-30T05:24:54.337-04:00Clinton/Trump (2): Donald Trump Is a Person of Appearances, Not a Person of SubstanceDonald Trump is a person of appearances, not a person of substance.<br />
<a name='more'></a>Donald Trump lives on the surface. He cannot see below the surface, and values nothing below the surface.<br />
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Such a person values wealth. He considers it to be plain and obvious proof of a person's value.<br />
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For such a person, identity and worth are determined by superficial features: their race, their gender, their clothing, their hair, their skin, their physical attractiveness. He would be racist, sexist, and xenophobic. He would be obsessed with his own physical attributes, and judge others by theirs.<br />
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Such a person confuses sex with love. He would have multiple wives and multiple affairs. As he aged, he would require a succession of ever-younger women, all beautiful, all exquisitely dressed and presented. Such a man would host beauty pageants and party at the Playboy mansion.<br />
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For such a person, "confidence" would be the same as braggadocio. Modesty, humility, and quiet confidence would be unfathomable to such a person.<br />
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Such a person confuses silent submission with agreement and subservience with inferiority. He would surround himself with sycophants, and "fire" anyone who dared to disagree.<br />
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Such a person would be uninterested in questions of policy. He would not regard social questions as problems to be solved, but rather as opportunities to impose his will on others.<br />
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Such a person would have no interest in or understanding of philosophy or religion. For such a person, these fields of human endeavor might as well not exist.<br />
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Such a person would not value discussion, debate, or engagement. He would have nothing to learn from other people. He would instead insult and degrade anyone who disagrees with him. True superiority, to such a man, is established by bullying and intimidation. <br />
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Such a person values physical strength and prowess, and despises debate and the seeking of common ground. Such a person would be drawn to the spectacle of professional wrestling. In international relations, such a person would respect and admire the use of military force and disparage engagement through diplomacy, the creation of alliances, and use of economic sanctions.<br />
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Such a person would not dedicate himself to the life of the mind; to creating art, or discovering scientific truth, or inventing a product or process. Nor would he take pride in building solid homes or manufacturing superior products. No, if such a person were ambitious, he would attempt to create a brand. He would have skyscrapers built with his name on them. Everything he owned would have his name on it. The quality of the products would not matter -- just the name. This would constitute physical, tangible proof of his success and his value.<br />
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Such a person would not devote himself to fostering close relationships or to caregiving. He would regard changing a diaper or pushing a baby carriage to be "women's work," and would consider leading a scout troop or coaching his child's team to be an utter waste of his time. At most, he would regard intimacy as a shared experience -- sex, golfing, or drinking. All of his relationships would be instrumental. Kindness, trust, and love -- the kind of love that puts the happiness of the other person or the welfare of other people first -- would be unknown to such a person.<br />
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Such a person is Donald Trump.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-42062309123589100562016-04-29T11:58:00.001-04:002016-04-30T04:14:10.038-04:00Clinton/Trump (1) -- Will Donald Trump Defend Ukraine Against Russia?Is Donald Trump caving in to Russia on Ukraine? It sure looks like it. There are strong indications that Trump opposes President Obama's policy of steadfast resistance to Russia, and would prefer to downgrade NATO, abandon Ukraine, and forge an alliance with Vladimir Putin. Donald Trump has chosen Paul Manafort -- an apologist for the Russian puppet Viktor Yanukovych -- as his campaign manager. This is deeply troubling. It calls into question Trump's loyalty to western Europe, his commitment to democracy, and his willingness to stand up to Russian expansionism. Why is Trump doing this? Trump is not a leader who has the best interests of people at heart. Trump is an opportunist who wants to make money.<br />
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<a name='more'></a>Donald Trump's position on Russia is becoming increasingly clear, and it appears that he would reverse seventy years of United States opposition to Russian expansionism.</div>
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From the end of World War II to the present Americans have sought to defend Europe against Russia. That's why we formed NATO and extended the nuclear umbrella over western Europe. That's why we stationed soldiers in Germany and relieved Berlin in the 1940s. That's why we fought the Cold War, and when that conflict was over that's why we extended our protection and NATO membership to the eastern European countries as they achieved freedom from Russia after the breakup of the Soviet Union. Why did we do this? It was not only for economic reasons, although the capitalist system and free trade have enhanced the quality of life of hundreds of millions of people. </div>
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No, it was for more than that. Since the Iron Curtain has lifted democracy has flourished, not just in eastern Germany but in all of eastern Europe. The people of eastern Europe now breath the fresh air of freedom.</div>
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Vladimir Putin has <a href="http://www.politifact.com/punditfact/statements/2014/mar/06/john-bolton/did-vladimir-putin-call-breakup-ussr-greatest-geop/" target="_blank">called</a> the collapse of the Soviet Union "a major geopolitical disaster of the century." Russia has aggressively fought to reassert sovereignty over any area where ethnic Russians live, including Transnitria in Moldova, Abkhazia and South Ossetia in Georgia, and in Syria where according to the <a href="http://www.nytimes.com/2012/07/02/world/middleeast/for-russia-syrian-ties-complicated-by-marriage.html" target="_blank">New York Times</a> 30,000 Russian citizens live. Russia currently exercises authority over areas that they conquered and ethnically cleansed -- the native population removed and given over to Russians -- including the Crimea in Ukraine and Kaliningrad Oblast in what was Germany. There have been myriad reports in the last year that Putin now intends to invade the Baltic countries: see <a href="http://www.aljazeera.com/programmes/peopleandpower/2015/07/baltic-bear-150726085956123.html" target="_blank">AlJazeera, July 29, 2015</a>; <a href="http://www.politico.com/story/2015/11/united-states-vladimir-putin-europe-russia-215401" target="_blank">Politico, November 1,2015</a>; <a href="http://www.newsweek.com/counting-down-russian-invasion-baltics-414877" target="_blank">Newsweek, January 12, 2016</a>; <a href="http://www.dailymail.co.uk/news/article-3430259/Russia-overrun-Eastern-Europe-THREE-DAYS-NATO-caught-napping-Putin-hopelessly-outgunned-according-military-predictions.html" target="_blank">Daily Mail, February 3, 2016</a>, </div>
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And, of course, in February and March of 2014 Russia invaded Ukraine, stole Crimea, and is still seeking to seize Ukraine's eastern provinces of Donetsk and Luhansk. On March 16, President Obama <a href="http://www.usatoday.com/story/news/politics/2014/03/16/russia-crimea-ukraine-referendum-sanctions/6493837/" target="_blank">told Vladimir Putin</a> that the Untied States and its allies would "never" recognize Russia's seizure of Crimea from Ukraine. President Obama outlined the American response to this aggression in <a href="https://www.whitehouse.gov/the-press-office/2014/03/20/statement-president-ukraine" target="_blank">these remarks</a> from the White House on March 20. On March 26 he <a href="https://www.washingtonpost.com/world/transcript-president-obama-gives-speech-addressing-europe-russia-on-march-26/2014/03/26/07ae80ae-b503-11e3-b899-20667de76985_story.html" target="_blank">delivered</a> an impassioned address in Brussels, saying "NATO nations never stand alone." Within a few months he and German Chancellor Angela Merkel swiftly organized stiff <a href="http://www.rferl.org/content/g7-obama-merkel-russia-sanctions/27058328.html" target="_blank">economic sanctions against Russia</a>. He and Merkel <a href="http://www.rferl.org/content/g7-obama-merkel-russia-sanctions/27058328.html" target="_blank">vowed today</a> that economic sanctions against Russia should remain in place until Russia demonstrates respect for Ukraine's sovereignty. President Obama's unyielding stand against Russian aggression in Ukraine is deeply unpopular in Russia. See <i><a href="https://www.rt.com/usa/obama-brussels-nato-crimea-469/" target="_blank">Obama Lashes Out at Russia Over Crimea During Brussels Speech</a></i>, Russia Today (March 26, 2014).</div>
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Trump has now made a number of troubling remarks that call into question his willingness to stand firmly against Russia in Ukraine and elsewhere. He has repeatedly expressed admiration for Vladimir Putin. <i><a href="http://www.cnn.com/2015/12/18/politics/donald-trump-praises-defends-vladimir-putin/" target="_blank">Trump Lavishes Praise on Vladimir Putin</a></i>, CNN (December 18, 2015).<i> </i>When reminded that Putin murders journalists who criticize him, Trump <a href="http://www.cnn.com/2015/12/21/politics/trump-putin-killing-reporters/" target="_blank">said</a>:</div>
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"I hate some of these people [journalists]. I hate 'em." Trump told the crowd. "I would never kill them. I would never do that."<br />
Then he decided to reconsider.<br />
"Uh, let's see, uh?" he said aloud, his voice rising. "No, I would never do that."</blockquote>
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Trump has denigrated NATO and our commitment to that alliance, <a href="http://www.realclearpolitics.com/video/2016/03/27/trump_europe_is_not_safe_lots_of_the_free_world_has_become_weak.html" target="_blank">calling</a> it "obsolete." In a formal speech on Ukraine that he delivered on September 11, 2015, that <a href="http://thehill.com/blogs/ballot-box/253398-awkwardness-abounds-at-trump-ukraine-speech" target="_blank">The Hill</a> described as "awkward," and "embarrassing," Trump had nothing but criticism for President Obama, whom he referred to as "not strong," and he said that Putin did not respect the President. The <a href="https://www.washingtonpost.com/news/post-politics/wp/2015/09/11/trump-tells-ukraine-conference-their-nation-was-invaded-because-there-is-no-respect-for-the-united-states/" target="_blank">Washington Post</a> quoted Trump as saying that the situation in the Ukraine was a "European problem," and noted that Trump had previously expressed indifference as to whether Ukraine becomes a NATO member. In an interview with Bill O'Reilly, Trump had said:</div>
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"I was over in Moscow two years ago and I will tell you -- you can get along with those people and get along with them well. You can make deals with those people. Obama can't. I would be willing to bet I would have a great relationship with Putin. It's about leadership."</blockquote>
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In his latest speech, billed as a major foreign policy address, Trump took his nationalism and isolationism a step further, adopting the mantle "America First" -- the slogan of Charles Lindbergh's pro-Nazi, anti-British political movement. The headline in Reuters was <i><a href="http://www.reuters.com/article/us-usa-election-trump-idUSKCN0XO10R" target="_blank">Trump's 'America First' Speech Alarms U.S. Allies</a>. </i>In this address Trump once again disparaged NATO and offered to enter into negotiations with Russia. Nicholas Burns, a former Bush official and current Clinton advisor, <a href="http://www.nytimes.com/2016/04/28/us/politics/donald-trump-foreign-policy-speech.html" target="_blank">describes</a> Trump as "casting these thunderbolts at threats at our allies, and yet there is almost a kid-glove treatment of Russia and China." </div>
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According to <a href="http://www.bloombergview.com/articles/2016-03-15/trump-s-long-romance-with-russia" target="_blank">Bloomberg</a>, Trump has sought to do business in Russia for years. According to <a href="https://yougov.co.uk/news/2016/04/17/donald-trump-us-president-russia/" target="_blank">YouGov</a>, Hillary Clinton is favored by the people of every other country, except Russia, where Trump is preferred by more than 20 points. <a href="http://sputniknews.com/us/20160304/1035764806/trump-russia-relations.html" target="_blank">Sputnik International</a> made Trump's statement at a Presidential debate, "Wouldn't it be nice if actually we could get along with Russia?" a headline. CNN reports, <i><a href="http://www.cnn.com/2016/04/28/politics/donald-trump-russia-putin/" target="_blank">Donald Trump's Foreign Policy Speech Earns Praise in Russia</a></i>.<i> </i>And <a href="http://www.pravdareport.com/world/americas/29-04-2016/134302-trump-0/" target="_blank">Pravda</a> loved his recent foreign policy speech because it signals such a reversal of American policy towards Russia. Pravda particular likes Trump's advisors. Pravda quotes Vladimir Vasilyev, a Russian expert on the United States, as saying that Trump will stop listening to traditional foreign policy experts in the United States and that he will take a "business approach" to foreign policy. Vasilyev states,</div>
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"In particular, his adviser on the Ukrainian issues is a political strategist who served the Party of Regions. And for Russia he took a person who used to be the Gazprom's adviser in Russia."</blockquote>
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Basically, Trump has announced that he is ready to do business with a murderous, dictatorial, kleptocratic, and militarily aggressive regime, and to betray the western allies who share with us a commitment to peace and democracy. He admires Vladimir Putin's reckless use of military force as "strength" and despises President Obama's wise and judicious use of diplomacy and economic leverage as "weakness."<br />
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Diplomacy and economic leverage have made Iran give up its nuclear ambitions, stripped Syria of chemical weapons, extracted us from ruinous wars in Iraq and Afghanistan, and is slowly forcing Russia to the negotiating table over Ukraine. Trump would throw all of those accomplishments away, desert our closest allies, and abandon our deepest principles. All for a few dollars more.</div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-18581961287917854432016-01-27T23:31:00.001-05:002016-01-27T23:31:41.424-05:00The Supreme Court’s Decision in Federal Energy Regulatory Commission v. Electric Power Supply Association<div class="MsoNormal">
On January 25, 2016, the Supreme Court handed down its
decision in Federal Energy Regulatory Commission v. Electric Power Supply
Association, upholding Order No. 745 of the FERC. This case primarily involves
a question of statutory interpretation. However, the Court’s decision also has
important policy implications. It represents a significant victory for businesses
and consumers who purchase electricity as well as a victory for the
environment, by reducing the necessity to generate electricity from expensive
and polluting coal-fired electrical generating plants. Justice Kagan joined by
five other justices authored the opinion for the majority. Justice Scalia,
joined by Justice Thomas, dissented. Justice Alito did not participate.<o:p></o:p></div>
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Under the Federal Power Act, the Federal Energy Regulatory Commission (FERC) has statutory authority to regulate the wholesale market
for electricity in the United States. However, the same law prohibits the Commission
from regulating the retail market. Wholesalers of electricity purchase
electricity from generating companies and resell it to utility companies, who
are the retailers. The utility companies resell electricity to the end users,
consumers and businesses that consume electricity.<o:p></o:p></div>
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A serious problem that arises in the market for electricity
is that demand is not steady. Instead, demand fluctuates substantially,
depending on the weather, the time of day, and other considerations. When
demand is low, prices are low, and electricity can be generated in ways that
are friendly to the environment. However, when demand spikes, prices can
skyrocket, and it becomes necessary to generate electricity from relatively
“dirty” sources like coal-fired plants.<o:p></o:p></div>
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Order No. 745 addresses this problem by requiring
wholesalers to not only purchase electricity from generating plants as needed,
but also to purchase promises from end users (or collective organizations of
end users) <b>not </b>to use electricity
during peak periods. Order 745 requires wholesalers to pay customers the same
rate <b>not </b>to use electricity as the
wholesaler would pay to purchase electricity – that is, the wholesale price.
This is called “demand response.” Demand response is used to eliminate “spikes”
in demand that disproportionately drive up the cost of electricity during peak
periods. As noted before, Order No. 745 has the effect of reducing the price of
electricity and reducing harmful emissions from plants that would otherwise not
be in use.<o:p></o:p></div>
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Order No. 745 was challenged, naturally, by companies that
stand to profit from unregulated spikes in the demand for electricity. They
raised two challenges to the order. First, they contended that the Commission’s
order unlawfully regulates the retail market, not the wholesale market, in
violation of the Federal Power Act. Second, they contended that the order is
“arbitrary and capricious” because it the “demand response” rate is too high.
In their opinion the rate that wholesalers should pay to consumers for demand
response should be reduced by the amount of savings that consumers earn by not
buying electricity in the retail market. The Supreme Court rejected both
challenges.<o:p></o:p></div>
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The challengers’ first argument is that, since consumers are
end users who purchase electricity in the retail market, the FERC simply lacks
the authority to order or even allow wholesalers to pay them not to consume
electricity during peak periods. In other words, “demand response” is illegal.
The Supreme Court found that in requiring wholesalers to pay consumers to
reduce demand, the FERC was regulating the wholesale market, not the retail
market, and thus was not overstepping its bounds under the Federal Power Act.
It was not necessary for the Court to invoke the <i>Chevron </i>doctrine – the doctrine that prescribes the authority of a
regulatory body to interpret ambiguities in the statute that it is charged with
enforcing. The Supreme Court found that the Federal Power Act is not ambiguous,
and that it clearly grants the Commission the power to require wholesalers to
engage in “demand response.”<o:p></o:p></div>
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Regarding the second issue, the Court rejected the
challengers’ contention that the rate of reimbursement that the Commission
established for “demand response” was so unreasonable as to be “arbitrary and
capricious.” In addressing this issue the Court implicitly invoked the doctrine
of Separation of Powers; it spoke of the necessity for the courts to defer to
an agency’s authority and expertise. The Court stated:<o:p></o:p></div>
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“The commission, not this or any other court, regulates
electricity rates. The disputed question here involves both technical
understanding and policy judgment. The Commission addressed that issue
seriously and carefully, providing reasons in support of its position and
responding to the principal alternative advanced. In upholding that action, we
do not discount the cogency of [the challenger’s argument in favor of the
alternative rate of reimbursement.] Nor do we say that in opting for [the
higher rate of reimbursement] instead, the FERC made the better call. It is not
our job to render that judgment, on which reasonable minds can differ. Our
important but limited role is to ensure that the Commission engaged in reasoned
decisionmaking – that it weighed competing views, selected a compensation
formula with adequate support in the record, and intelligibly explained the
reasons for making that choice. FERC satisfied that standard.”<o:p></o:p></div>
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Accordingly, the Court upheld the Commission’s Order No.
745.<o:p></o:p></div>
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Justice Scalia dissented on the ground that “demand
response” constitutes an unlawful regulation of the retail market. He did not
reach the issue of whether the agency’s order was arbitrary and capricious.</div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-37540099170903704612016-01-22T05:56:00.001-05:002016-01-22T05:56:35.980-05:00National Review Violates Trump's Rights Under the Eleventh Commandment -- Will Competing Republican Candidates Do the Same?Yesterday the National Review published an editorial ("<a href="http://www.nationalreview.com/article/430137/donald-trump-conservative-movement-menace" target="_blank">Against Trump</a>") and a collection of essays ("<a href="http://www.nationalreview.com/article/430126/donald-trump-conservatives-oppose-nomination" target="_blank">A Donald Trump Nomination Would Fundamentally Change the GOP</a>") criticizing Donald Trump. The editorial and some of the essays were composed of standard, inoffensive critiques that are perfectly acceptable within the Republican Party, along the lines of "Trump isn't conservative enough." But several of the essays NR chose to publish in support of its editorial crossed the line that Reagan laid down and that Republican pundits and politicians have almost universally respected until now. Those essays called Trump a racist and a would-be war criminal. And the response of the Republican Party hierarchy was swift. It <a href="http://www.nationalreview.com/corner/430166/houston-we-have-problem" target="_blank">disassociated itself</a> from the National Review.<br />
<br />
<a name='more'></a>It has been obvious for a long time that Trump must be stopped. If he is nominated for the Presidency the Republican Party will be torn apart. Until now conservative pundits have proclaimed and competing candidates have complained only that Trump is not conservative enough, that he is really a liberal, a Democrat, a leftist, and worst of all ... a New Yorker! (Bias alert - I grew up in New York too! As far away from New York City you can be and still be a denizen of the Empire State, but nevertheless as OK as Van Buren!)<br />
<br />
My goodness! Not conservative enough! I guess Trump isn't being hard enough on those foreigners! Let's make that wall 100 feet high! And Mexico shouldn't just have to pay for the wall -- that's letting them off easy -- let's force them to decorate it with murals of Zapata bowing gratefully to Trump for allowing them to remain right next to the United States! And Mexicans aren't just rapists and murderers but probably something much much worse ... perhaps they're liberals! And the Muslims -- not only are they forbidden to enter America, but let's erase from the record books the accomplishments of Muhammed Ali and Kareem Abdul Jabbar, which are clearly fictitious. The families of terrorists won't just be killed, they'll be forced to watch reruns of "The Apprentice" until they beg Trump for a job! Finally Obama's birth certificate must not only be changed to finally admit that he was born in Kenya, but must also reflect the obvious fact that he is the unnatural spawn of Saul Alinsky and Reverend Wright!<br />
<br />
Put yourself in the shoes of a Trump supporter watching an advertisement sponsored by Jeb! telling you that Trump isn't conservative enough. This milquetoast attack on Trump failed miserably because it was so obviously false. Trump is a convert to conservatism, just as many people are converts to liberalism, evangelism, or vegetarianism. Reagan was a convert to conservatism. Romney was a convert to conservatism -- several times! No-one seriously looks at Donald Trump and says to himself, "Boy, I wish he were more conservative!"<br />
<br />
No, folks, the problem is that Trump is a racist, sexist, religiously biased zenophobe. That's not what the Republican Party has stood for historically. Heck, even the worst President we've had over the last century, Warren Harding, supported civil rights for African-Americans and equal rights for women. George W. Bush, as badly as he failed at foreign policy and economic policy (what's left?) couldn't pass a black or brown child without giving them a hug. Conservatism does not have to constitute prejudice.<br />
<br />
There is a large pool of voters who are prejudiced, and we have had plenty of politicians in our history who have waded into that pool looking for power -- far too many. Trump dove into that pool and is now jumping around splashing and screaming "Marco Polo -- the Chinese are eating our lunch!" Trump's appeal isn't primarily anger at Washington. His voters aren't people who want to close the national wildlife refuges and give the land back to its original and rightful owners, the ranchers who lawfully terrorized and drove off the Indians and homesteaders. Nope, Trump supporters are people who think that Mexicans are criminally inclined, that Islam is a false religion, that women should be judged primarily by their appearance, and that any black man who does not defer to them and who aspires to the office of the Presidency is not qualified under Constitution, and once in office does not deserve to be treated with respect.<br />
<br />
This is why Republican leaders and opinion-makers must oppose Trump. It's time -- right now, before the Iowa caucuses -- for the Republican Party and its candidates to tell racist voters to leave, like Hubert Humphrey did in 1948. As Strom Thurmond led the Dixiecrats out of the Democratic National Convention, Humphrey stood at the podium shouting "Let them go! Let them go!" It's time for the Republican Party to let them go. The Party leadership shouldn't have cut ties with the National Review. It should thank them for taking a courageous position that is necessary to save the Republican Party.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-27663780195484240962016-01-21T18:45:00.002-05:002016-01-21T18:45:28.572-05:00The Failure to Adopt Single Payer Health Care in Vermont -- And How It Could Succeed NationallyThe principal policy difference between Hillary Clinton and Bernie Sanders is over health care -- specifically, health care financing. Bernie favors the adoption of a "single payer" health care system, which he (and many before him) refer to as "Medicare for All." Hillary doesn't disagree about the desirability of a single payer system, but contends that it isn't feasible, politically or economically. She's right, at least for now. There is a way to bring about single payer system, but Democrats can't do that by themselves. Republicans, or at least a substantial proportion of Republicans, would have to agree. And there is a way that might happen.<br />
<br />
<a name='more'></a><br />
To gain a better understanding of this subject let's review the background of health care financing. It's useful to differentiate three different ways of paying for health care:<br />
<br />
<b>1. Private Pay.</b> Employers that offer health insurance purchase health insurance plans for their employees, and persons who are not employed or whose employers do not offer health insurance either purchase health insurance for themselves or pay all medical costs out-of-pocket. (United States)<br />
<br />
<b>2. Single-Payer.</b> Employers no longer offer health insurance to their employees. All health care costs are paid by the government, which either negotiates reimbursement rates with physicians and hospitals or simply sets those rates. (Canada, and Medicare and Medicaid in the United States)<br />
<br />
<b>3. National Health Care System.</b> The government owns all of the hospitals and employs all health care workers. (United Kingdom)<br />
<br />
The Affordable Care Act chose to expand and strengthen both private pay and single-payer in America. It broadens single-payer by expanding Medicaid (at least in states willing to accept federal funds to do this) to cover all persons at or near the poverty line. It strengthens private pay by offering subsidies to middle-class individuals and families to purchase private insurance. The law also requires insurance companies to cover most medical conditions, to limit co-pays and deductibles, and to offer policies to all persons in the community at the same rate, with some variations allowed for age, sex, and whether people are smokers.<br />
<br />
But the The Affordable Care Act did not utterly close the door on a public option "Medicare for All" system. The statute allowed the states to experiment with health care financing reform. Although a number of Democrats (and therefore a majority of Congress) rejected the "public option" when the ACA was being debated in Congress throughout 2009 and early 2010, the statute permits individual states to propose using the federal funding they would otherwise receive to implement a "single payer" program of paying for health care for all citizens.<br />
<br />
The State of Vermont enthusiastically studied this option, which it called "Green Mountain Care." But after four years the state concluded that it wasn't economically feasible to create a single-payer system in Vermont. On December 30, 2014, Governor Peter Shumlin issued <a href="http://hcr.vermont.gov/sites/hcr/files/2014/GMCReport2014/GMC%20FINAL%20REPORT%20123014.pdf" target="_blank">this report</a>, explaining how the state simply couldn't afford to implement a single payer health care system.<br />
<br />
The key paragraph in the report follows. Governor Shumlin stated:<br />
<blockquote class="tr_bq">
I have supported a universal, publicly financed health care
system my entire public life, and believe that all Vermonters deserve health
care as a right, regardless of employment or income. Our current way of paying
for health care is inequitable. I wanted to fix this at the state level, and I
thought we could. I have learned that the limitations of state-based financing
– limitations of federal law, limitations of our tax capacity, and sensitivity
of our economy – make that unwise and untenable at this time.</blockquote>
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<o:p></o:p></div>
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No-one doubts Governor Shumlin's devotion to health care reform. Nor should anyone doubt Hillary Clinton's resolve on this subject. As First Lady she led the fight for universal health care more than twenty years ago. Had she proposed a plan similar to the Affordable Care Act at that time, it might have been adopted. But neither the health insurance industry nor the country as a whole was then ready to move towards single payer, and it still isn't ready. Like it or not, we must continue to approximate universal health care by expanding access through private health insurance.</div>
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This may change, but it will change only with the assistance of a substantial segment of the Republican Party. And that is appropriate. Sometimes it is necessary to move forward with only a majority of the public or the public's representatives. But it is almost always preferable to enact reforms that are, if not a consensus, at least supported by an overwhelming percentage of the public and the various interests in society. </div>
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How might that happen with respect to health care financing reform? What would persuade significant elements of the Republican Party to support a single payer system?</div>
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Very simply, the key is the elimination of employer sponsored insurance. As a result of globalization, American businesses are competing with a vast array of international companies that do not bear the cost of paying for their employees' health care. As a result goods and services from the United States are at a serious disadvantage. They compete in international markets against goods and services whose cost does not reflect the expense for health care for the workers who make them. Another way of looking at this is that other countries are subsidizing the export of goods and services by having single payer or national health care systems of their own. If there were a treaty banning all forms of government subsidies of a country's exports, we would surely contest their single payer systems as gross violations of the principle of free trade.</div>
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In short, a single payer system is more than theoretically attainable in America -- it is both economically and politically feasible. But not until entities such as the National Association of Manufacturers, the United States Chamber of Commerce, and the segments of the Republican establishment that represent those interests decide to work with Democrats to lift the enormous cost of health care from the backs of business enterprises and place it on the shoulders of taxpayers. </div>
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Democrats cannot do this alone. Democrats cannot by themselves raise taxes to the extent necessary to cover the cost of health care even though this would probably result in substantial savings in overall health care spending. Until the traditional core of the Republican Party decides to join forces with Democrats on this issue, the wisest course of action is to continue to expand and improve access to health care by subsidizing the private system of health insurance.</div>
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<i>Wilson Huhn is the author of "ObamaCare: Is It Necessary, What Will It Accomplish, Is It Constitutional."</i></div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com3tag:blogger.com,1999:blog-8014260034594922331.post-61120900242831482092016-01-18T15:22:00.001-05:002016-01-18T15:22:57.393-05:00Remembering King and Honoring His LegacyI saw Martin Luther King, Jr., on June 15, 1964. My oldest brother graduated from college that day, and King received an honorary degree. When King was introduced, my mother told us to stand with the rest of the audience. The couple sitting behind us remained seated. My little sister asked our mother, "Why aren't they standing up?" Mother told us, "Some people don't understand what a great man he is." Here are a few reflections about what King did for us, and why the principles he stood for are so important for us today.<br />
<div>
<a name='more'></a><br />
King did not fight people. He was the epitome of non-violence. But he was a fighter, and he did fight. He fought, in his words, poverty, racism, and war. </div>
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<br /></div>
<div>
His greatest written work, "Letter from a Birmingham Jail," explained that we are one country, one nation. In response to white clergymen who complained of "outside agitators" coming to Birmingham to rally in support of civil rights, King said, "I am in Birmingham because injustice is here:"</div>
<div>
<blockquote class="tr_bq">
Moreover, I am cognizant of the interrelatedness of all communities and
states. I cannot sit idly by in <st1:city w:st="on">Atlanta</st1:city> and not
be concerned about what happens in <st1:city w:st="on">Birmingham</st1:city>.
Injustice anywhere is a threat to justice everywhere. We are caught in an
inescapable network of mutuality, tied in a single garment of destiny. Whatever
affects one directly, affects all indirectly. Never again can we afford to live
with the narrow, provincial "outside agitator" idea. Anyone who lives
inside the <st1:country-region w:st="on">United States</st1:country-region>
can never be considered an outsider anywhere within its bounds.</blockquote>
Fifty years later our world is smaller, more intimate, more of a small town than it was in 1963, but this means that none of us can live in a small town any more. Communication with people of other lands is unlimited and instantaneous. Travel anywhere in the world is now feasible within a single day. Products from all over the world flood our stores and our homes. Education and economic progress have uplifted billions of people. The equality of the human race has never been nearer or more evident, and our understanding of the words "all men are created equal" is immeasurably deeper and broader than it was in 1963.<br />
<br />
The principle of equality encompasses African-Americans. It encompasses women. It encompasses gays and lesbians. It encompasses Muslims. It encompasses Mexicans, and South Americans, and Asians, and Africans, and persons of all nationalities who have come to this land eager to work for a better life and willing to sacrifice in order to build a better society.<br />
<br />
But just as in 1963, there are those who are frightened by equality. They are afraid that their status, or their power, or their privilege is threatened when Spanish-speaking people live and work among us, or when people of the same sex get married and have families, or when an African-American or a woman becomes President of the United States. Instead of celebrating these developments they claim that these people are different, they are outsiders, they are abominations, they are foreigners. Even in the face of incontrovertible proof many millions of American citizens refuse to accept the fact that our President was born in the United States -- that he is a "natural born citizen" -- that he is one of us.<br />
<br />
Racism, sexism, homophobia, and xenophobia are not only alive they are walking among us, and we must fight them all.<br />
<br />
The same people who are afraid of foreigners and who oppose equality embrace and even revere violence. They not only promote gun ownership, they exult in it. They elevate the Second Amendment over the First Amendment. They would take over federal buildings with guns and steal federal land. They would turn the Constitution on its head and would have arbitrary forces prevail over the deliberative. In the conduct of foreign affairs they prefer war to negotiation. To them, the Iran treaty, perhaps the greatest victory of American diplomacy since the Test Ban Treaty of 1963, is the equivalent of surrender. They would re-institute the torture of prisoners, a practice that had been unlawful in our civilization for 500 years.<br />
<br />
King resisted violence with steadfast courage, and so must we.<br />
<br />
The greatest issue of our day is climate change, because it threatens life on earth itself. The second greatest is income inequality, and all of the barriers that inequality creates to obtaining decent housing, reliable child care, a good education, a fulfilling career, affordable health care, and an honorable retirement. At its foundation, the solution to economic inequality is sharing -- fairly sharing the bounty of the earth and the fruits of our labors. Persons who receive billions of dollars as the result of the labor of tens of thousands of people are no more entitled to all those billions than the monarchs and aristocrats of the Middle Ages were entitled to what they could wring from the sweat of other people's brows. To maintain their privileged position the billionaires of today stoke hatred and exploit fear -- they seek to distract and divide us.<br />
<br />
Economic inequality is a cancer, and we must continue to adopt laws and refine policies so that every person receives a fair share of what our society produces.<br />
<br />
King's legacy is alive. My mother would be proud of those who are still fighting poverty, racism, and war.</div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com6tag:blogger.com,1999:blog-8014260034594922331.post-5457929065106373192016-01-07T08:26:00.001-05:002016-01-07T08:26:02.260-05:00Is Ted Cruz a "Natural-Born" American Citizen? A Purely Textual Response<a href="http://www.nydailynews.com/news/politics/trump-raises-questions-cruz-u-s-citizenship-article-1.2487139" target="_blank">Donald Trump</a> and <a href="http://www.mediaite.com/online/backing-trump-coulter-criticizes-new-york-times-for-saying-cruz-is-a-natural-born-citizen/" target="_blank">Anne Coulter</a> have challenged the right of Ted Cruz to become President on the ground that, since he was born in Canada, he is not a "natural-born citizen" of the United States as required by Article II, Section 1 of the Constitution. Many esteemed legal scholars, including <a href="http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/" target="_blank">Neal Katyal and Paul Clement</a>, have weighed in on the issue, most of whom take the position that Cruz is indeed a natural-born citizen. I agree with them, and offer below a short, simple semantic argument on Cruz' behalf.<br />
<br />
<a name='more'></a>The word "natural" appears in only two places in the original Constitution of the United States, both of which refer to citizenship. In Article II, the Constitution provides that to be eligible to serve as President a person must be a "natural born citizen." And in Article I, the Constitution vests Congress with the power to establish a uniform rule of "naturalization." Accordingly, the words of the original Constitution set forth two ways that a person can become a citizen. A person may be born a citizen, or a person may be naturalized as a citizen. No other options are described in the text of the Constitution.<br />
<br />
The first words of the Fourteenth Amendment, which was drafted shortly after the Civil War, added the "Citizenship Clause" to the Constitution. It states:<br />
<blockquote class="tr_bq">
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.</blockquote>
Once again the words of the Constitution identify two ways and only two ways that a person can become a citizen -- by birth or by naturalization. The Fourteenth Amendment, it is true, affirmatively provides that a person who is born in the United States automatically becomes a citizen of the United States. But it does not prohibit persons born abroad to an American parent from being considered citizens. Nor does it state that only persons who are born in the United States are "natural born" citizens.<br />
<br />
Ted Cruz was not naturalized. Instead he became a citizen at the moment of his birth. It is true that he was born in Canada, but since the time of the founding federal statutes have granted citizenship to persons born abroad to an American parent, so long as the parent resided in the United States for a certain prescribed period of time. Ted Cruz's mother was a citizen of the United States and she did in fact reside in the United States for the statutorily-prescribed period of time, so under federal statutes Ted Cruz became a citizen at the moment of his birth.<br />
<br />
Cruz is not a citizen by virtue of the Citizenship Clause of the Fourteenth Amendment of the Constitution. He is however a citizen by virtue of federal statutes that confer citizenship on persons born abroad to a parent who is an American citizen. Accordingly, Ted Cruz became a citizen at birth -- a "natural born citizen" -- and is therefore eligible under the Constitution to seek the office of the Presidency.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-66368426424349645042016-01-07T07:35:00.000-05:002016-01-07T07:35:16.920-05:00A Response to the "Anti-Government" View of the Second AmendmentI appeared on "Essential Pittsburgh" yesterday, a call-in show on NPR radio, to talk about the constitutionality of President Obama's executive actions intended to improve and enhance background checks on persons purchasing guns. Following the program I received an e-mail from a listener (first name of "Jim") who challenged my position on the Second Amendment in several respects. He wondered why I omitted the phrase "of the people" when reciting the Second Amendment from memory. (Really, it's just my age, Jim!) He suggested that I favored the "collective right" over the "individual right" interpretation of the Second Amendment. (I don't - but we still have to determine precisely what the individual right is.) He wrote that I was wrong in stating that the Pennsylvania Constitution of 1776 included the right to hunt. (I have since checked and it does protect the right to hunt, in Section 43.) Most importantly, he expressed support for the theory that the Second Amendment was intended to prevent "tyranny." I agree with Jim on this last and most important point. But he and I may disagree about precisely how the Second Amendment was intended to operate as a check on "tyranny." My entire response to Jim follows.<br />
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<a name='more'></a><br />
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<span style="font-family: inherit;">Hi Jim,<o:p></o:p></span></div>
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<span style="font-family: inherit;">
My omission of the phrase “of the people” was not intentional. It was observant
of you to notice, but it does not have anything to do with my beliefs about the
Second Amendment. As you know, Jim, all constitutional rights are individual
rights, not group rights – adding “of the people” is of no significance. You
are inferring something without good reason.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">I agree with the Supreme
Court’s decisions in <i>Heller</i> and <i>McDonald</i> that every person has a
constitutional right to self-defense, and in light of the long tradition of gun
ownership in America I have to concede that it’s reasonable for the Court to
rule that people have a constitutional right to own a handgun in their homes
for the purpose of self-defense. I don’t agree that this is a Second Amendment
right – I would have made it an unenumerated right implied by the word
“liberty” in the 5<sup>th</sup> and 14<sup>th</sup> Amendments – but the
Supreme Court has the last word on these matters, not me! <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">As you correctly note, the
Supreme Court ruled that the Second Amendment confers an individual right, not
a collective right. But you are wrong to infer that I agree with the
“collective right” theory. I do agree with both you and the Supreme Court that the
Second Amendment was intended as an individual right. However, I think it was
intended to be a right that is analogous to the right to serve on a jury –
both a right and a duty! It is the right and the duty to serve in the
citizen militia. Time has passed the concept of the “citizen militia” by,
however, and as I mentioned on the show that left the Supreme Court with a
dilemma – what do you do with such an important amendment that seems to have no
application in the modern world? The Supreme Court decided to turn it into one
aspect of the right of self-defense that, while a natural right, has nothing to
do with the Second Amendment as originally written.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">I would have to check the
original Pennsylvania Constitution again. I could have sworn that it mentioned
the use of arms for both hunting and self-defense as individual rights. But you
have checked it more recently, and I defer to you.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">I agree with your final point,
that the Second Amendment was intended to protect against tyranny, but you and
I may have some sharp disagreements about how it was intended to accomplish
that. The historical record is clear that the founders did not want to have a
standing army during peacetime. They wanted a citizen army that would be
supplemented by a professional army in time of war. Sadly, the War of 1812 made
it clear that wasn’t going to work, and the militia gradually withered away
after that. I don’t at all agree that the founders wanted the militia to fight
the government. That’s very much against the historical record. Jim, what do
you think that Alexander Hamilton, George Washington, and Benjamin Franklin all
thought about Shay’s Rebellion? Do you think that they approved of it? Look at
what Hamilton and Washington did a few years later in suppressing the Whiskey
Rebellion. And take a look at what they wrote in the Constitution about the
expected role of the militia. Its purpose was “to execute the laws of the
Union, suppress insurrections, and repel invasions.” That’s pretty much the
opposite of what you are suggesting. Furthermore, the Constitution reserves to
the government itself the power to “call forth” the militia; to arm, organize,
and discipline it; to govern it; and to appoint its officers. Furthermore the
Second Amendment describes the militia as “well-regulated.” No, I think that
both the text of the Constitution and its history make it crystal clear that
the framers of the Constitution did not want to encourage private members of
society to take up arms against the government. They wanted a citizen army that
would be under the control of the government. They weren’t authorizing
rebellion.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">Two generations later Lincoln
addressed that point. The right of revolution, he said, is not and cannot
possibly be a legal or constitutional right. Rebellion is by its very nature
illegal. If rebellion is to be justified it must be on moral, not legal
grounds. The Declaration sought to justify the Revolution on moral grounds. In
contrast, the Confederacy was launched on deeply immoral grounds. Terrorists
and people like the Bundy’s by definition are violating the law. The
justification for their actions, if any, depends not on the Constitution but on
the strength of their moral position.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">Thank you for your interest and
response. That is one thing that unites us as Americans. We care about freedom
and self-government. I appreciate the opportunity to debate these issues with
you.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="text-indent: .5in;">
<span style="font-family: inherit;">
Will Huhn</span><span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;"><o:p></o:p></span></div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-48109536692068460142016-01-06T16:39:00.000-05:002016-01-06T16:39:11.863-05:00Echo from the Past: Chief Judge of Alabama Supreme Court Blocks Order of the United States Supreme CourtChief Judge Ray Moore of the Alabama Supreme Court, in his capacity as administrator of all the state courts, has <a href="https://assets.documentcloud.org/documents/2675333/160106-Alabama-Admin-Order.pdf" target="_blank">ordered</a> clerks across the state to cease issuing marriage licenses to gay and lesbian couples. This is not the first time that Judge Moore has issued such an order. He did so on February 8, 2015, before the Supreme Court issued its decision in <i><a href="https://supreme.justia.com/cases/federal/us/576/14-556/" target="_blank">Obergefell v. Hodges</a></i>. <a href="http://www.wilsonhuhn.com/2015/02/judge-ray-moore-governor-robert-bentley.html" target="_blank">Here</a> is the essay I posted at that time, and <a href="http://www.wilsonhuhn.com/2015/02/same-sex-marriage-in-alabama-showing.html" target="_blank">here</a> is the blog entry posted a few days later discussing the Supreme Court's refusal to enter a stay on behalf of the State of Alabama. Nor is this the first time that the Alabama Supreme Court has disobeyed the United States Supreme Court in a matter relating to civil rights.<br />
<br />
<a name='more'></a>During the Civil Rights era the State of Alabama sought to silence the N.A.A.C.P. by demanding the disclosure of its membership lists. In 1958 in the case of <i><a href="https://supreme.justia.com/cases/federal/us/357/449/case.html" target="_blank">N.A.A.C.P. v. Alabama</a></i>,<i> </i>the United States Supreme Court ruled against the state, noting that members of the N.A.A.C.P. would likely face "<span style="font-family: 'Times New Roman', serif; font-size: 12pt;">economic reprisal, loss of employment, threat of
physical coercion, and other manifestations of public hostility" if their association with the civil rights organization were revealed. The Court's decision in <i>N.A.A.C.P. v. Alabama </i>is now considered to be a landmark case in the protection of Freedom of Association.</span><br />
<span style="font-family: 'Times New Roman', serif; font-size: 12pt;"><br /></span>
<span style="font-family: 'Times New Roman', serif; font-size: 12pt;">Despite this ruling, the Alabama Supreme Court continued to issue orders prohibiting the N.A.A.C.P. from operating within the state. The rulings of the Alabama Supreme Court were appealed to the United States Supreme Court three more times. Finally, in 1964, the U.S. Supreme Court had had enough, and Justice Harlan entered the following order:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-font-size: 10.0pt; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">In view of the history of this case, we are
asked to formulate a decree for entry in the state courts which will assure the
Association’s right to conduct activities in <st1:place w:st="on"><st1:state w:st="on">Alabama</st1:state></st1:place> without further delay. While such a course undoubtedly lies within this
Court’s power, we prefer to follow our usual practice and remand the case to the Supreme Court
of Alabama for further proceedings not inconsistent with this opinion. Such
proceedings should include the prompt entry of a decree, in accordance with
state procedures, vacating in all respects the permanent injunction order
issued by the Circuit Court of Montgomery County, Alabama, and permitting the
Association to take all steps necessary to qualify it to do business in <st1:place w:st="on"><st1:state w:st="on">Alabama</st1:state></st1:place>. Should we unhappily be mistaken in our belief
that the Supreme Court of Alabama will promptly implement this disposition,
leave is given the Association to apply to this Court for further appropriate
relief.</span></blockquote>
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-font-size: 10.0pt; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">It is possible that the federal courts will give the Alabama courts the opportunity to review and reverse Judge Moore's illegal and misguided order. It is also possible that Judge Moore has exhausted the patience of the federal courts and that immediate relief will issue.</span><br />
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-font-size: 10.0pt; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;"><br /></span>Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-29107577741038870882016-01-06T10:18:00.000-05:002016-01-06T10:18:09.440-05:00The Constitutionality of President Obama's Proposed Actions on Gun ControlOn Tuesday, January 5, President Barack Obama delivered an inspiring <a href="https://www.whitehouse.gov/the-press-office/2016/01/05/remarks-president-common-sense-gun-safety-reform" target="_blank">address</a> proposing a number of steps that his administration will take to protect Americans from gun violence. Because Congress has refused to enact new legislation -- for example, it failed to enact the Toomey-Manchin background check bill, summarized by Politifact <a href="http://www.politifact.com/truth-o-meter/article/2013/apr/30/summary-manchin-toomey-gun-proposal/" target="_blank">here</a> -- the President announced what his administration will do to improve the enforcement of existing law. Many have attacked the President's proposals on the ground that he lacks the authority under the Constitution to take these steps. I don't see any constitutional difficulties whatsoever with the President's proposals.<br />
<br />
<a name='more'></a><br />
<div class="MsoNormal">
What is the President proposing? Basically he is taking
action to improve enforcement of existing gun laws.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The most important law that we have to enforce is <a href="https://www.law.cornell.edu/uscode/text/18/922" target="_blank">18 U.S.C. § 922</a>. This is the law
that prohibits anybody from “engaging in the business” of manufacturing, importing, or dealing in firearms, unless that person is a <b>licensed</b> manufacturer,
importer, or dealer. The problem is
that there are a lot of people who “engage in the business” of dealing in
firearms – that is, they repeatedly sell guns to make a profit – who are <b>not</b> licensed. They are getting away
with it because they claim that they are making “occasional sales” of guns “for
the enhancement of a personal collection or a hobby,” which is specifically
allowed under another provision of federal law, <a href="https://www.law.cornell.edu/uscode/text/18/921" target="_blank">18 U.S.C. § 921(a)(21)(C)</a>, which provides: </div>
<blockquote class="tr_bq">
The term “engaged in the business” means<a href="https://www.blogger.com/null" name="a_21_A"></a>
… as applied to a dealer in firearms, … a person who devotes time, attention,
and labor to dealing in firearms as a regular course of trade or business with
the principal objective of livelihood and profit through the repetitive
purchase and resale of firearms, but such term shall not include a person who
makes occasional sales, exchanges, or purchases of firearms for the enhancement
of a personal collection or for a hobby, or who sells all or part of his personal
collection of firearms. </blockquote>
<div class="MsoNormal">
Well, if you regularly sell a gun in its original packaging that you’ve
owned for about five minutes before reshipping it, I’m sorry, but that’s not a “hobby”
nor is it a sale from a “personal collection,” and you are breaking the law. The
Attorney General is going to issue regulations that will give people guidance
about when they have to apply for a license to sell guns. This will go a long
way towards closing the so-called “gun show” loophole.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The most important reason that we have to crack down on
people who are pretending to be making “private” sales of guns is that only licensed
dealers have to conduct background checks on purchasers of firearms. Obviously
the people who are circumventing the law by engaging in the business of selling
firearms but not obtaining a license are not conducting background checks, and
we have to make sure that they do. Background checks are necessary to prevent
convicted felons, persons with mental illness who have been adjudicated to be a
danger to themselves or others, and persons convicted of certain crimes of
domestic violence, from purchasing firearms. But there are a number of other
problems that are preventing even licensed firearms dealers from performing
background checks. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
For example, some people, including criminals, are avoiding
background checks by purchasing guns through trusts or corporations. The President announced that the federal government is going to adopt regulations to close this loophole as
well.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Another problem is some of the states have laws or policies
preventing them from reporting about persons who have been determined to be a
danger to themselves or others because of mental illness. The President has
ordered the Social Security Administration and the Department of Health and
Human Services to issue regulations to address this problem and to work with
the states to remove those barriers to accurate and complete reporting.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Other states fail to fully and accurately report convictions
for domestic violence. The Attorney General is going to work with the states to
meet their responsibility in this area as well.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The federal government will also take steps to require gun
dealers to improve reporting of lost or stolen firearms, to close yet another
loophole that has allowed criminals to obtain guns.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Yet another problem is that we need more law enforcement
personnel to enforce the existing laws. The President is going to assign 200
additional FBI agents to firearms enforcement, and he is requesting Congress
for additional funding to hire 250 new ATF agents and investigators.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Finally, one problem that is obviously related to firearms carnage is untreated mental illness. The President announced that he is requesting Congress to appropriate $500 million in additional funding for mental health.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
I don't see any constitutional difficulties with what President Obama is proposing. The Constitution gives the President the "executive power" -- that is, the power to execute the law -- and that is all that the President is proposing to do. There have been many instances in American history where the courts have found that Presidents have overstepped their power. For example, in <i><a href="https://supreme.justia.com/cases/federal/us/343/579/case.html" target="_blank">Youngstown Sheet & Tube v. Sawyer</a></i> (1952) the Supreme Court found that President Truman did not have the power to issue an executive order keeping the steel plants open during the Korean War, because Congress had refused to give the President that type of emergency power. In <i><a href="https://supreme.justia.com/cases/federal/us/553/723/opinion.html" target="_blank">Boumediene v. Bush</a> </i>(2008) the Supreme Court held that the President did not have the power to hold prisoners in Guantanamo without giving them a fair hearing in accordance with law and existing treaties. And there are serious questions about the constitutionality of President Obama's immigration policies, DACA and DAPA, granting renewable deferrals of actions to deport certain classes of persons who entered or remained in this country illegally. These broad directives may exceed the discretion that the Executive Branch has in enforcing the immigration law. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
But I see no comparable objection to the President's gun control proposals in this case. The President is not proposing that federal agencies should either break the law or refuse to enforce the law. He is merely taking steps to enforce existing law. It is possible that in the future that power may be abused in a particular case, but nothing so far indicates that the administration intends to violate or ignore existing law in a systematic manner.</div>
Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com1tag:blogger.com,1999:blog-8014260034594922331.post-10130517838136576982015-12-27T22:55:00.000-05:002015-12-27T22:55:01.106-05:00Political CorrectnessA number of leading Republican candidates for President have decried "political correctness." Why?<br />
<br />
<a name='more'></a>Ben Carson frequently attacks "political correctness." In a recent mailing we received from his campaign, he listed a number of reasons that we should vote for him for President. The first was that he was not a career politician; the second was that he is not "politically correct." <a href="http://www.motherjones.com/kevin-drum/2015/10/heres-what-ben-carson-means-when-he-talks-about-political-correctness" target="_blank">Kevin Drum</a> writes that Carson "incessantly" talks about "political correctness" because "it is the core of his worldview." According to Drum, Carson says that political correctness is a tool used by liberals to prevent conservatives from realizing how tyrannical their government is; that it keeps conservatives from comparing their present government to Nazi Germany and their present condition to slavery. Carson has stated: "Obamacare is really, I think, the worst thing that has happened in this country since slavery." "We live in a Gestapo age." <a href="https://www.washingtonpost.com/news/the-fix/wp/2015/10/09/ben-carson-the-biggest-fan-of-nazi-metaphors-in-politics/" target="_blank">Amber Phillips</a> quotes a dozen other Hitler comparisons by Carson while <a href="http://www.huffingtonpost.com/entry/ben-carson-slavery-abortion_562cd4c6e4b0443bb564356b" target="_blank">Sam Stein</a> has compiled videos of Carson comparing both Obamacare and abortion to slavery.<br />
<br />
But Carson may have another reason for opposing political correctness. Carson has a history of making highly offensive jokes. He makes Holocaust jokes. <a href="http://www.mediaite.com/online/sht-ben-carson-says-the-complete-collection/#0" target="_blank">Tommy Christopher</a> of Mediate shows Carson saying, "The fashion industry makes young women think they're supposed to be so skinny they look like they escaped from Auschwitz." He makes age jokes. Describing how futile it is to operate on old people, <a href="http://thedailybanter.com/2015/11/even-more-shit-ben-carson-says/" target="_blank">he said</a>, "With an old geezer, you spend all that time operating and five years later they die of something else." Here's a <a href="http://www.dailymotion.com/video/x3cunx3" target="_blank">video</a> of Carson "apologizing" for these and other "politically incorrect" statements. He says, "If anybody's offended, too bad."<br />
<br />
Donald Trump also incessantly decries "political correctness." <a href="http://www.politico.com/story/2015/09/donald-trump-politically-correct-crap-213988" target="_blank">Nick Gass</a> of Politico, in an article posted September 23, quoted Trump speaking to a business group in South Carolina: "I'm so tired of this politically correct crap." Trump, of course, famously called Mexican immigrants "rapists" and "murderers," routinely insults women by disparaging their looks and their menstrual cycles, mocked a disabled reporter by mimicking his movements, and for a long time has been the leading "birther" in the United States -- persistently contending that our first African-American President is not, in fact, an American citizen, a claim that now is <a href="http://www.publicpolicypolling.com/pdf/2015/PPP_Release_National_90115.pdf" target="_blank">accepted</a> as fact by the majority of Republicans, in large part because almost every other Republican leader has failed to defend the President against these demonstrably false attacks.<br />
<br />
Mike Huckabee came under criticism after <a href="http://www.salon.com/2015/10/14/huckabees_stunning_ignorance_his_north_korean_chef_joke_mocks_people_who_are_powerless_and_starved/" target="_blank">tweeting</a> during a Democratic debate, "I trust Bernie Sanders with my tax dollars like I trust a North Korean chef with my Labrador." After being criticized for characterizing Koreans, the next day he <a href="https://www.facebook.com/mikehuckabee/posts/10153332889682869" target="_blank">posted</a>, "Political correctness has run amok in this country!"<br />
<br />
Ted Cruz and several other candidates have criticized Democratic leaders who refuse to use the term "radical Islamic terrorism." In a Talking Points Memo article published May 5, <a href="http://talkingpointsmemo.com/livewire/ted-cruz-garland-free-speech" target="_blank">Caitlin MacNeal</a> quoted Cruz as saying, "When given the choice between free speech and the political correctness of refusing to acknowledge radical Islamic terrorism, it is a time for choosing where we stand." In the same speech Cruz vigorously defended "religious liberty" laws that would have permitted private businesses to discriminate against gays and lesbians, and described himself as standing up for the First Amendment when others were too afraid to do so.<br />
<br />
Jeb Bush has decried "political correctness" in a number of contexts. In a statement supporting discrimination against gays and lesbians, as quoted in an article by <a href="http://www.washingtonexaminer.com/jeb-bush-lets-shatter-political-correctness/article/2577598" target="_blank">Ryan Lovelace</a> of the Washington Examiner on December 3:<br />
<blockquote class="tr_bq">
The political correctness of our country needs to be shattered. ... The President of the United States has the authority in may ways to convene, has the bully pulpit to make sure that people know at least one person, the leader of the free world, will be on the side of people who only want to act on their religious beliefs.</blockquote>
In another case Bush needed multiple attempts to defend his use of an offensive term before deciding to strike back at "political correctness." In speaking about abuses of the right of "birthright citizenship," Bush used the term "anchor babies." When Hispanic groups objected to the use of the term, Bush <a href="http://www.slate.com/blogs/the_slatest/2015/08/24/jeb_bush_explains_anchor_babies_remark_frankly_it_s_more_related_to_asian.html" target="_blank">explained</a> that he hadn't meant to target them: "Frankly it's more related to Asian people ..." Then he decided that the apologies were unnecessary, stating, "I think we need to take a step back and chill out a little bit as it relates to the political correctness that somehow you need to be scolded a little bit when you say something." <br />
<br />
Bush has on occasion criticized Donald Trump for trying to "insult his way to the Presidency." One of Trump's most offensive remarks was when <a href="http://www.bbc.com/news/election-us-2016-35161406" target="_blank">made reference</a> to a bathroom break for Hillary Clinton as "disgusting," and adding that in 2008 Clinton was "schlonged" by Barack Obama -- a twofer insult! Bush <a href="http://www.cnn.com/2015/12/22/politics/jeb-bush-hillary-clinton-schlonged/" target="_blank">criticized</a> Trump for his "profanity" (actually, Trump's language was vulgar, not profane). But Bush then implied that we shouldn't overreact to Trump's language -- that Clinton would simply use this opportunity to "play the victim." Bush stated:<br />
<blockquote class="tr_bq">
She's great at being the victim. You know this will enhance her "victimology" status. This is what she loves doing.</blockquote>
Attacks on "political correctness" have been a mainstay of the far right for a long time. It is a staple argument of <a href="http://www.rushlimbaugh.com/daily/2015/08/10/trump_resonates_because_millions_of_people_are_sick_of_political_correctness_phony_outrage_and_phony_apologies" target="_blank">Rush Limbaugh</a>, who <a href="http://www.ohioverticals.com/blogs/akron_law_cafe/2012/03/rush-limbaugh-larry-flynt-and-the-westboro-baptist-church-is-limbaugh-protected-by-the-first-amendment/" target="_blank">repeatedly</a> called Sandra Fluke a "slut" for defending women's access to birth control. Ann Coulter (who <a href="http://www.huffingtonpost.com/2012/10/26/ann-coulter-retard_n_2022621.html" target="_blank">referred</a> to the President as a "retard" and who after hearing Republican candidates repeatedly express support for Israel, <a href="http://www.thedailybeast.com/articles/2015/09/17/ann-coulter-defends-f-king-jews-rant.html" target="_blank">tweeted</a>, "How many fucking Jews do these people think there are in the United States?") is also opposed to "political correctness." <a href="http://www.theblaze.com/blog/2015/06/02/ann-coulter-immigrants-are-window-dressing-for-left-wing-activists-campaign-to-destroy-america/" target="_blank">Coulter </a>has repeatedly expressed the notion that political correctness, coupled with third world immigration and a massive welfare state, is bringing about "the end of America."<br />
<br />
Trump, Carson, Cruz, Huckabee, Bush, Limbaugh, Coulter, and myriad other Republicans defend their use of degrading and insulting language by contending that criticism of their word choice is either feigned or unjustified. I disagree. Political correctness is primarily a refusal to use degrading language about other people. I try to be respectful of others; when I am not I am embarrassed. I try to avoid making <i>ad hominem</i> attacks on other people; when I fail I apologize. I would never intentionally vilify another person based upon their race, religion, gender, sexual orientation, or disability; if I do then shame on me.<br />
<br />
There is something more significant that mere etiquette or debating style at stake here. And it is something more than merely appearing "presidential," as Jeb Bush seems concerned about. Those are all superficial or instrumental reasons for opposing a candidate's use of insults and epithets. What Trump and the candidates are doing isn't just a method of commanding attention or a way of getting under an opponent's skin. It is symptomatic of something much deeper and much more dangerous. It is an attempt to justify and normalize racism, sexism, homophobia, and religious hatred. Trump and others are appealing to these hateful instincts for political advantage.<br />
<br />
If Ben Carson or anyone else were to make a holocaust joke in my presence, I would tell them that what they said was anti-semitic. When someone tells me that Barack Obama was not born in the United States I tell them that that unfounded belief is grounded in racism. When someone expresses the opinion that women can't write computer code or understand higher mathematics I point to my wife and daughters and tell them they are just sexist. I do not tolerate the use of words like "retarded" in discussions to which I am a party. I have lost friends because of this. Like Ben Carson says, "too bad." I am "politically correct" and proud of it.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-42006282888085977482015-12-27T08:34:00.000-05:002015-12-27T08:34:21.082-05:00In Defense of Hate Crimes Legislation I explained the purpose and defended the validity of hate crimes legislation in a pair of posts that were published in 2009 in the Akron Law Cafe. Those posts are summarized and updated here.<br />
<br />
<a name='more'></a>In <i><a href="http://www.ohio.com/blogs/akron-law-cafe/akron-law-caf%C3%A9-1.295890/the-pending-federal-hate-crimes-legislation-part-1-1.296159" target="_blank">The Pending Federal Hate Crimes Legislation - Part 1</a></i>, I reviewed the history and text of the "Local Law Enforcement Hate Crimes Prevention Act of 2009. This law was later enacted as the "Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, and was signed into law by President Obama on October 28, 2009. The law expanded existing federal law to cover crimes motivated by the gender, gender identity, sexual orientation, or disability of the victim. The new law is now codified at <a href="https://www.law.cornell.edu/uscode/text/18/249" target="_blank">18 U.S.C. § 249(a) (2)</a>. Section 249 and similar laws were originally adopted during Reconstruction to protect the newly-freed slaves from terrorism and intimidation at the hands of their former masters, and it prohibited violent crimes motivated because of the race or color of the victim. The law has steadily expanded to include threats and violence motivated by the actual or perceived religion or national origin of the victim, and now gender, gender identity, sexual orientation, and disability. The "Part 1" post defended the constitutionality of the proposed law as being within Congress' power under the Commerce Clause as well as Congress' power to enforce the provisions of the 14th Amendment. In 2014 a federal district court in Oregon upheld the constitutionality of the law as applied to an assault motivated by sexual orientation, reasoning that the Commerce Clause vested Congress with the power to prohibit violent crimes committed with weapons that had moved in interstate commerce. <i>United States v. Mason</i>, 993 F.Supp.2d 1308 (D. Or., 2014).<br />
<br />
In <i><a href="http://www.ohio.com/blogs/akron-law-cafe/akron-law-caf%C3%A9-1.295890/the-pending-federal-hate-crimes-legislation-part-2-1.296160" target="_blank">The Pending Federal Hate Crimes Legislation -- Part 2</a></i>, I defended the law against arguments that are commonly raised against hate crimes legislation. In response to the claim that laws prohibiting "hate crimes" interfere with freedom of expression, I noted that the law expressly punishes only threats and violent actions, and expressly protects the expression of opinions. A lawsuit challenging the federal statute that was brought by a group of anti-gay pastors was dismissed on the ground that they lacked standing as plaintiffs to challenge the law. Why did they lack standing? <i>Because they failed to allege that they intended to commit acts of violence against gays and lesbians or that they intended to incite anyone else to commit acts of violence! </i>The Circuit Court found that the law punishes threats and violence, not the expression of opinions. <i>Glenn v. Holder</i>, 690 F.3d 417 (6th Cir., 2012).<br />
<br />
In response to the contention that hate crimes statutes confer "special rights" or that they protect "particular groups of people," I responded:<br />
<blockquote class="tr_bq" style="margin-bottom: 0.0001pt;">
<span style="background: white;">The Hate
Crimes Act provides that no person may be physically assaulted on account of
their race, color, religion, national origin, gender, sexual orientation,
gender identity, or disability. The law applies if a group of blacks
attacks a white person because he is white - if a group of women attack a
man because he is a man - if a group of gays or lesbians attack a person
because he is heterosexual. OK, there doesn't seem to be a violation of
the law if someone is attacked because of "lack of disability," but
you get the point. The law targets hatred and protects the victims of
hatred. It doesn't mean that some people get more protection than
others. If Grandma is attacked because she is a woman or because she is
Polish or because she is Lutheran or because she is heterosexual then she is
protected by this law. If she or any one of us is attacked at an ATM not
because of hatred but simply for the cold, hard cash, well that is not a
violation of this law. But that does not mean that some people are receiving
"special treatment." We are, in fact, all treated the same
under this law. We would all be protected against crimes of violence
motivated by hatred of the groups we belong to.</span></blockquote>
<br />
These laws protect all of us from violence motivated by hatred of our race, religion, gender, gender identity, sexual orientation, or disability. These laws, like laws requiring non-discrimination in employment and housing, equal access to public accommodations, and marriage equality, make our society more peaceful, more efficient, and more just.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-20401022129021054372015-12-26T08:32:00.001-05:002015-12-27T18:25:26.837-05:00What Drives the Ideological Divide in the United States? Reason Versus Magical ThinkingOver the past fifty years the political parties have realigned demographically and ideologically. In general, conservative groups moved towards the Republican Party and liberals have become Democrats. For example, the Dixiecrats switched from the Democratic Party to the Republican Party and Evangelical Christians became politically active and joined the Republican Party; while conservationists and "good government" reformers abandoned the Republican Party for the Democratic Party. Conservative Democrats and liberal Republicans no longer exist in any numbers. Thus, today there is a sharp ideological divide between the parties, making it difficult to find common ground on issues such as climate change, health care policy, gun control, immigration, or same-sex marriage. But another difference has also arisen between the two dominant political parties in the United States: an epistomological one. Democrats, who in general seek to change the future, are increasingly drawn to science and economic analysis, while Republicans, who wish to preserve or return to what they value in the past, are more and more likely to depend upon various forms of magical thinking. Some examples follow.<br />
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<a name='more'></a>The difference in analytical styles is sharpest on the question of climate change. The Democratic position is almost entirely dependent on scientific research. No average citizen has sufficient experience or expertise to detect climate change; even if we think it's warmer than it used to be, without science we would be at a loss to explain why it was happening. But scientists are confident that the planet is warming; that this phenomenon is due to increasing concentrations of man-made carbon emissions in the atmosphere; and that if we do not halt this process it will result in massive destruction and suffering around the world.<br />
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In general, Democrats accept this narrative as true because of their willingness to rely on science. Republicans reject it, preferring to base their beliefs upon what is consistent with their view of the proper role of government as well as a desire to preserve existing allocations of resources and wealth. If one believes unreservedly in limited government, then anything that would necessitate massive government intervention cannot possibly be true. And if one's livelihood (or the lifeblood of one's political party) is based upon the coal industry or oil and gas, then one has a strong incentive to call climate change a "hoax"; or to deny that it is being caused by human activity; or to throw up one's hands and say that there is nothing that can be done; or even to imagine that another ice age is imminent that will make global warming irrelevant, if not a benefit.<br />
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The same was true of the parties' positions on the Affordable Care Act. The law's complicated structure of mandated and subsidized private health insurance was based entirely on the forecasts and predictions of economists. The statutory scheme has hundreds of moving parts; each time one of the proposed law's provisions was changed, it affected the predicted outcome in complex ways. The goals of the law were ambitious; it was intended to expand access to health care, to slow the pace of inflation in the health care industry, and to improve the quality of care. Now that it is in effect the law is working on all three fronts, thank goodness. I studied the bill intently as it moved through Congress, and wrote a data-heavy book about the projected economic impact of it just after it was enacted into law. But ultimately I, like other Democrats, was relying on the expertise of economists who said that it would probably work. As with climate change, Republicans denied that it would work; again, not because they had evidence to the contrary, but because the proposed law conflicted with their beliefs about the proper role of government. The proof of this is that to this day the Republican Party has not proposed a plan of universal health care. In the face of overwhelming proof to the contrary they claim that the Affordable Care Act is a failure. Ideologically, I suppose it is a failure in their eyes. But in the real world it has exceeded expectations in expanding access, reining in costs, and improving the quality of care that people actually receive.<br />
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Gun control is yet another example. Democrats oppose the widespread availability of deadly firearms because 30,000 Americans are killed and over 100,000 are wounded every year by guns. Democrats want to craft wise and fair gun control policies in order to reduce this carnage. Republicans do not simply oppose gun control; they oppose any and all scientific research about the availability and use of guns! This is above all a public health issue, yet the Centers of Disease Control is forbidden by law from conducting scientific research on gun violence! Democrats want reliable, detailed information upon which to base our policies. Republicans don't want the facts. For them it is sufficient to rely upon the myth, promoted in virtually every Western and detective story, of "the good guy with a gun."<br />
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Finally, we see the same epistomological divide on the question of same-sex marriage. In the scientific realm in study after study sociologists, psychologists, social workers, and physicians have determined that homosexuality is not a deviation but rather simply one aspect of normal human behavior. There is no difference between people in same-sex unions and opposite-sex unions, either in their love for each other or their ability to raise children. Science tells us what many of us have discovered in our daily lives. People are people, and sexual orientation has no correlation to the ability to form strong families or to do anything else for that matter. There is simply no rational reason for the law to discriminate against gay and lesbian individuals or couples.<br />
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But the absence of rational proof has proven to be no impediment to most members and most leaders of the Republican Party. They still oppose same-sex marriage - and many go further and want to reinstate laws that would discriminate against gays and lesbians in the military and to enact laws that would permit private businesses to discriminate against their gay and lesbian customers and employees. The reason that Republicans invoke for their opposition to marriage equality is almost always "religion." Not science. Not reason. In their eyes gays and lesbians are not equal simply because God has told them that these people are not equal, and laws that treat them as equal violate conservatives' rights to "religious liberty."<br />
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Our political parties are deeply divided. The racial and ideological differences make it difficult enough to reach acceptable compromises. But the differences between the parties run much deeper. Democrats and Republicans have different ways of separating truth from falsity and different ways of telling right from wrong. Those philosophical differences make it difficult to even have a rational discussion with someone on the opposing side.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-89438382777594087592015-12-21T10:30:00.000-05:002015-12-21T14:57:25.059-05:00The First Amendment Defense Act: State Action, Equal Protection, Freedom of Expression, and Establishment Clause Concerns<br />
In the <a href="http://www.wilsonhuhn.com/2015/12/first-amendment-defense-act-protecting.html" target="_blank">preceding post discussing the First Amendment Defense Act</a> I analyzed the vague and overbroad <a href="https://www.congress.gov/bill/114th-congress/house-bill/2802/text" target="_blank">language</a> of the Act and how the Act fundamentally misunderstands the nature of "liberty." This post discusses how the proposed law fares under the State Action Doctrine, Equal Protection, Freedom of Expression, and the Establishment Clause.<br />
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<a name='more'></a><b>State Action Doctrine</b><br />
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The Constitution does not prohibit private acts of discrimination. If a person or a business wishes to discriminate against same-sex couples or any other individuals, that is not a violation of the Constitution. The Constitution prohibits "state action" (laws or official policies adopted or enforced by the government), not private action.<br />
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Furthermore, the Constitution does not require the government to prohibit or prevent private acts of discrimination. If the government fails to enact laws prohibiting private acts of discrimination, that is "state inaction," not state action. Under the Constitution the government may, if it chooses, simply allow people to discriminate or commit all kinds of atrocities against each other.<br />
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What the government may not do is to <b>encourage </b>private acts of discrimination. <i><a href="https://supreme.justia.com/cases/federal/us/387/369/case.html" target="_blank">Reitman v. Mulkey</a> </i>(1967) (invalidating a California constitutional amendment prohibiting the passage of fair housing laws). When the government "encourages" or "substantially involves itself" in private acts of discrimination, it is complicit in such discrimination. State inaction becomes "state action," and the requirements of the Constitution come into play.<br />
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<b>Equal Protection</b><br />
<b><br /></b>
The "First Amendment Defense Act," as described in the <a href="http://www.wilsonhuhn.com/2015/12/first-amendment-defense-act-protecting.html" target="_blank">previous post</a>, seeks to protect individuals, corporations, and all other organizations in their discriminatory conduct against same sex couples and all unmarried persons who have sex. If the law simply left individuals alone to act as they choose, it would be perfectly constitutional. However, Section 4 of this Act establishes a number of legal protections for individuals and organizations to engage in private acts of discrimination. Section 4(a) expressly creates a cause of action for persons who persons who wish to discriminate against same-sex couples and would grant them "compensatory damages, injunctive relief, declaratory relief, or any other appropriate relief" for any "actual or <b>threatened</b>" interference with their right to discriminate. Section 4(b) dispenses with the near-universal requirement of exhaustion of administrative remedies, stating:<br />
<blockquote class="tr_bq">
Notwithstanding any other provision of law, and action under this section may be commenced, and relief may be granted, in a United States district court without regard to whether the person commencing the action has sought or exhausted administrative remedies.</blockquote>
Section 4(c) of the Act awards discriminating individuals and organizations the right to attorney fees if the government should in any way take "discriminatory action" against them on account of their discriminatory conduct towards others.<br />
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Finally, Section 4(d) of the Act authorizes the government itself to intervene in these cases on behalf of individuals who wish to discriminate against same-sex couples.<br />
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The Act does not simply acquiesce in private acts of discrimination -- it fosters and encourages private acts of discrimination. This crosses the line from state inaction to state action, and violates Equal Protection.<br />
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<b>Freedom of Expression</b><br />
<b><br /></b>
To the extent that the law seeks to protect freedom of expression of persons opposed to same-sex marriage -- by insulating schoolyard bullying or workplace harassment, for instance -- it violates a basic tenet of First Amendment Law. The Supreme Court has unequivocally prohibited the government from enacting laws that are "viewpoint based." Laws inhibiting expression may be "content based," if the need is great. For example, the law may prohibit threats, incitement to violence, fraud, perjury, and false advertising. But laws affecting private acts of expression may not be "viewpoint based." For example, the law may not prohibit people from burning the flag of the United States in protest, nor may the law require people to salute the flag. As Justice Robert Jackson stated in the flag salute case, <i><a href="https://www.law.cornell.edu/supremecourt/text/319/624" target="_blank">West Virginia Board of Education v. Barnette</a> </i>(1943):<br />
<blockquote class="tr_bq">
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.</blockquote>
The First Amendment Defense Act violates this fundamental rule against viewpoint-based laws. Section 3(a) of the Act protects one viewpoint, and one viewpoint only, from being "discriminated against" -- the belief that "marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage." It does not protect the contrary view. It does not protect other religious or moral beliefs. Only opposition to same-sex marriage warrants protection within its broad unmarked boundaries. This is viewpoint discrimination, and it is unconstitutional <i>per se</i>.<br />
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<b>Establishment Clause</b><br />
<b><br /></b>
For generations it has been a fundamental principal of First Amendment law that the government must remain neutral with respect to religion. The government may neither "advance" or "promote" religion, nor may it "disparage" or "discourage" it. The Supreme Court has repeated this maxim in case after case. In the most recent Establishment Clause case, <i><a href="https://supreme.justia.com/cases/federal/us/572/12-696/opinion3.html" target="_blank">Town of Greece v. Galloway</a><span id="goog_2104912122"></span><span id="goog_2104912123"></span><a href="https://www.blogger.com/"></a> </i>(2014) the Court upheld the practice of a Town Board in starting its meetings with a prayer. But even in <i>Galloway </i>the Court drew the line against government action that favored one religion over another. Speaking for the majority of the Court, Justice Kennedy stated:<br />
<blockquote class="tr_bq">
Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not "exploited to proselytize or advance any one, or to disparage any other, faith or belief." (quoting <i>Marsh v. Chambers </i>(1983)).</blockquote>
Is the Supreme Court inclined to validate a law that fosters and protects one specific religious belief above all others? Not unless the Court is willing to abandon its fundamental commitment to government neutrality on matters of religion.<br />
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<div style="text-align: center;">
<b>Summary</b></div>
<div style="text-align: center;">
<br /></div>
The First Amendment Defense Act is unconstitutional. It constitutes state action, not state inaction. It encourages private acts of discrimination against same-sex couples and unmarried persons in violation of Equal Protection. It protects the expression of one particular viewpoint over other viewpoints in violation of Freedom of Expression. And it advances one religion and disparages others in violation of the Establishment Clause.<br />
<br />Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-5760960010704722392015-12-21T08:14:00.000-05:002015-12-21T09:21:05.341-05:00First Amendment Defense Act: Protecting an Open-Ended "Right" to Discriminate Against Same-Sex CouplesThe First Amendment Defense Act purports to prohibit discrimination. In fact it fosters and promotes discrimination against same-sex couples. Moreover, the proposed law is fatally vague, and as it result it would encourage and protect a broad range of discriminatory actions by businesses, universities, hospitals, and other institutions. Furthermore, although the Act purports to defend "liberty," the Act fundamentally misunderstands the true nature of liberty -- that no person is entitled to more liberty than he or she is willing to grant to every other person.<br />
<br />
<a name='more'></a>Let us first identify what this bill would not do. It would not add an ounce of protection to the religious freedom of churches or clergy in the exercise of their religion. It would not protect clergy from having to perform same-sex marriages. Clergy already have an absolute right to refuse to officiate at weddings they disapprove of. It would not prevent churches from discriminating in their membership policies. Churches already have an absolute right to prohibit any person from worshiping with them. It would not prevent a religion from denying a sacrament to same-sex couples or anyone else. Religions already have an absolute right to do so. For example, the Mormon Church <a href="https://www.washingtonpost.com/news/acts-of-faith/wp/2015/11/05/mormon-church-to-exclude-children-of-same-sex-couples-from-getting-blessed-and-baptized-until-they-are-18/" target="_blank">announced</a> that it will deny the rite of baptism to the children of same-sex couples, and it is clear that the church has a constitutional right to discriminate in this manner. The Supreme Court has unequivocally ruled that the law may not interfere with the "internal governance" of a church. <i><a href="https://supreme.justia.com/cases/federal/us/565/10-553/" target="_blank">Hosanna-Tabor Evangelical Church and School v. EEOC</a> </i>(2012) (holding that the Americans with Disabilities Act could not be applied against a religious school that discriminated against a person performing a "ministerial function").<br />
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Second, this bill would not add an ounce of protection to freedom of speech. The government does not and cannot punish individuals or organizations on account of the political or religious opinions they express. The government may punish threats and incitements to violence, but hopefully the authors of this bill do not intend to shield such speech. The government may also prohibit bullying in schools and harassment at work. This bill might be intended to authorize bullying and harassment - that point is discussed below.<br />
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Third, this bill would not add an ounce of protection to freedom of belief. Freedom of belief is already absolute.<br />
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What this Act would do is to grant people an unfettered legal right to engage in <b>conduct </b>that discriminates against same-sex married couples, same-sex unmarried couples, and unmarried people who have sex.<br />
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<div style="text-align: center;">
<b>Text of the Bill</b></div>
<b><br /></b>
The First Amendment Defense Act (H.R. 2802) was introduced into the House of Representatives by Representative Raul Labrador (R-ID). The <a href="https://www.congress.gov/bill/114th-congress/house-bill/2802" target="_blank">bill tracker</a> at Congress.gov indicates that the bill has 152 co-sponsors, and the text of the bill may be accessed <a href="https://www.congress.gov/bill/114th-congress/house-bill/2802/text" target="_blank">here</a>. The operative provision of the bill prohibits "discriminatory action" by the federal government -- against those who discriminate! Section 3(a) of the proposed law states:<br />
<blockquote class="tr_bq">
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">Notwithstanding any other provision of law, the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.</span></blockquote>
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<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">The wording of this bill reveals that is is not a serious piece of legislation. It is a polemic, not a policy. It seeks to make a forensic point -- that the laws and court decisions permitting same-sex marriage "discriminate" against religious individuals and religious organizations. It appears to concede that discrimination is wrong, yet it disguises the fact that its proponents seek the right to discriminate against others. Several other problems with the language of the bill are analyzed below. </span></div>
<div style="text-align: center;">
<b><br /></b></div>
<div style="text-align: center;">
<b>Vague and Overbroad Provisions</b></div>
<b><br /></b>
What would this bill do? It's hard to say. Several key provisions are purposefully vague or overbroad.<br />
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<b>"Person" Who Would be Protected by the Law</b><br />
<br />
The example, the law protects "persons" from "discriminatory action" by the federal government, but it places no limits on what constitutes a person. The bill incorporates by reference the definition of a "person" from the federal Dictionary Act, which states that human beings as well as incorporated and unincorporated associations of all kinds, including both non-profit and for-profit institutions, are all "persons." In short, this law is intended to protect not only the right of churches or clergy to discriminate against same-sex couples, but everyone else under the sun as well.<br />
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<b>"Religious Belief or Moral Conviction"</b><br />
<b><br /></b>
This law protects not only religiously-motivated conduct against same-sex married couples, but <b>all</b> conduct against them! So long as a person thinks that same-sex marriage is wrong, this law gives that person the right to discriminate against them.<br />
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<b>"Acts" by Persons</b><br />
<b><br /></b>
The principal problem with the bill is that it does not define the "acts" that these persons would be entitled to engage in. Would it allow a university to deny admittance to an individual who is married to another person of the same gender? Would it allow a business to refuse service or deny employment to such an individual? Would it allow a business to deny employment benefits (such as spousal health insurance coverage) to an employee who is lawfully married to someone of the same gender? It would certainly appear so -- in fact, all of these actions are probably well within the intent of the authors of the bill.<br />
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How far would this go? What about schoolyard bullying? Or cyberbullying? Or workplace harassment? If this bill were adopted would a private employer be entitled to foster a hostile work environment for persons in same-sex marriages? It certainly seems likely. The supporters of this bill seem to believe that people should have the right to discriminate against same-sex couples -- people who do not harm them in any way -- simply because of their own religious or moral beliefs.<br />
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<b>"Discriminatory Action" by the Federal Government</b><br />
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<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">Section 3(b) of the bill attempts to define what the federal government may not do to persons who "believe or act" in opposition to same sex marriage. The government may not, for example, deny any person tax-exempt status; deny a tax deduction; deny accreditation, deny a license; or deny government funding, on account of a person's beliefs or actions in opposition to same-sex marriage. However, any specificity is destroyed by the final words of Section 3(b), which states that the federal government may not "take any other discriminatory action against such person."</span><br />
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;"><br /></span>
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">What does it mean to "take discriminatory action" against a person who discriminates against persons in a same-sex marriage? Would that include enforcing non-discrimination laws, such as laws prohibiting workplace discrimination? Would it include prosecution for a hate crime? The Act does not say.</span><br />
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;"><br /></span>
<b><span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">"Or that </span><span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">sexual relations are properly reserved to such a marriage"</span></b><br />
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;"><br /></span>
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">Finally, what does the clause at the end of Section 3(a) mean? The bill's sponsors obviously want "persons" -- that is, every human being and every organization that exists -- to have the right to discriminate against married same-sex couples. Do they also want to legalize discrimination against unmarried same-sex couples? Against all gays and lesbians? Against unwed mothers? Against any unmarried person who has sex? Or perhaps against unmarried <i>women </i>who have sex! Again, the bill does not place any limits on the interpretation of this broad, general proscription on government action. To the contrary, Section 5(a) of the bill states:</span><br />
<blockquote class="tr_bq">
This Act shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted by the terms of this Act and the Constitution.</blockquote>
<div style="text-align: center;">
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;"><b>The True Nature of "Liberty"</b></span></div>
<div style="text-align: center;">
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;"><b><br /></b></span></div>
<span style="background-color: white; font-family: "times" , "times new roman" , serif; font-size: 16px; line-height: 21.328px; text-indent: 32px;">The people supporting this "religious liberty" bill make the same fundamental error that slaveholders made who claimed that laws that prohibited slavery from expanding into the Territories of the United States infringed upon their "liberty" to enslave others. They make the same fundamental error that the descendants of slaveholders made who claimed that they had the "liberty" to segregate and discriminate against people of a different race. People who are opposed to same-sex relationships and same-sex marriage have made the same error from the beginning -- they fail to appreciate that no-one is entitled to more "liberty" than anyone else -- that each person is entitled to as much liberty as is consistent with the same amount of liberty enjoyed by every other person. They do not understand the difference between the freedom to do as one wants with oneself and the license to control the actions of others. Until they accept the basic premise that other people have the right to live their lives without harassment and discrimination, they will continue to seek the power to oppress others.</span>Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-43050416616999291412015-12-10T07:53:00.001-05:002015-12-10T07:53:52.995-05:00Analysis of Little Sisters of the Poor v. Burwell<div class="MsoNormal">
<span style="font-family: 'Times New Roman', serif; font-size: 12pt;">The<b> </b>Supreme Court is returning to the issue that it dealt with in the <i>Hobby Lobby </i>case -- whether the Religious Freedom Restoration Act (RFRA) gives an employer the right to refuse to provide health insurance coverage for contraceptive services. This is a difficult question because the Affordable Care Act gives employees the right to such coverage. In <i>Hobby Lobby </i>the Court was able to craft an accommodation that protected the rights of both employers and employees. In this case, a group of employers challenges that accommodation; they contend that the accommodation itself violates their rights to religious exercise under RFRA.</span></div>
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<span style="font-family: 'Times New Roman', serif; font-size: 12pt;"></span></div>
<a name='more'></a><br /><br />
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<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Introduction</span></b></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">On
November 6, 2015, the Supreme Court granted certiorari in seven consolidated
cases involving a large number of independent religious non-profit
organizations. The issue in this case can be stated very simply. Do the HHS
regulations that require independent religious employers to notify the
government that they have religious objections to providing contraception to
their employees violate the Religious Freedom Restoration Act? The plaintiffs
do not challenge the employer contraception mandate itself. The Supreme Court
already ruled in the <i>Hobby Lobby </i>case
that the government must make an accommodation for religious employers. In
contrast to <i>Hobby Lobby</i>, in these
cases the plaintiffs assert that the requirement that they notify the
government that they have a religious objection to the contraception mandate is
unduly burdensome on the exercise of their religion.<o:p></o:p></span></div>
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<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Plaintiffs<o:p></o:p></span></b></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Most
of the plaintiff organizations are not integrated into a church, but rather are
independent religious entities performing evangelical, educational, or charitable
work. For example, the Little Sisters of the Poor operate nursing homes for the
elderly who are indigent. Southern Nazarene University is an institution of
higher education that describes itself as providing “Christ-centered higher
education.” The non-profit organization Reaching Souls promotes and supports
evangelism in Africa and elsewhere. <o:p></o:p></span></div>
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<br /></div>
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<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Contraception
Mandate and the Accommodation<o:p></o:p></span></b></div>
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<br /></div>
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<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The
Affordable Care Act requires health insurance plans, whether they are
employer-sponsored or sold to individuals over an exchange, to cover preventive
care at no charge to policyholders. As a result, if an employer offers health
insurance to its employees, the health insurance plan must cover the cost of
preventive care with no deductibles or co-pays. The Department of Health and
Human Services (HHS) determined that contraception constitutes a type of
preventive care, and issued a regulation providing that contraceptive services (such
as birth control pills or IUDs) must be covered at no cost to policyholders.
However, in recognition of religious objections to contraception or certain
forms of contraception, HHS issued a regulation completely exempting churches
and their integrated affiliates from having to comply with the contraception
mandate. In other words, the employees of churches and their integrated
organizations do not have a legal right to contraception coverage under the
Affordable Care Act. In addition to the exemption for churches and their
integrated organizations, HHS has issued a regulation creating an accommodation
for<b> independent</b> religious non-profit
organizations. This accommodation simply requires the organization to notify either
its health insurer or HHS of its refusal to provide health insurance coverage to
its employees for contraception, or certain forms of contraception. Upon
receipt of that notification HHS requires the insurer to bear the cost of
providing contraception coverage at no cost to either the employer or the
employee.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Decisions of
the Circuit Courts <o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Most
of the plaintiffs in these seven cases (who are the appellants in the Supreme
Court) are, as described above, independent non-profit religious organizations
that are not churches themselves, nor are they integrated into a church. In
some of the cases the plaintiffs won at the District Court level, but in all of
these seven cases the federal Circuit Courts of Appeals ruled against them and
in favor of the federal government, upholding the notification requirement.
These decisions came from the 3<sup>rd</sup>, 5<sup>th</sup>, 10<sup>th</sup>,
and D.C. Circuit Courts of Appeals. Other Circuit Courts, including the 6<sup>th</sup>
and 7<sup>th</sup> Circuits, came to same conclusion, but those cases are not
on appeal. In September of this year one federal Circuit Court ruled in favor
of the plaintiffs. That was the 8<sup>th</sup> Circuit Court of Appeals. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Questions
Presented in the Supreme Court<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
granting certiorari (that is, in agreeing to hear the seven cases on appeal), the
Supreme Court consolidated all seven cases and certified the following
questions that were framed in the parties’ petitions for certiorari:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Whether the HHS Mandate and its
"accommodation" violate the Religious Freedom Restoration Act
(''RFRA'') by forcing religious nonprofits to act in violation of their
sincerely held religious beliefs, when the Government has not proven that this
compulsion is the least restrictive means of advancing any compelling interest.
(Docket No.s 14-1418, 14-1376, and 14-1377)<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Whether the Religious Freedom Restoration
Act ("RFRA'') allows the Government to force objecting religious nonprofit
organizations to violate their beliefs by offering health plans with
"seamless" access to coverage for contraceptives, abortifacients, and
sterilization. (Docket No.s 14-1505, 13-5368, 13-5371, and 14-5021)<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Does the availability of a regulatory
method for nonprofit religious employers to comply with HHS’s contraceptive
mandate eliminate either the substantial burden on religious exercise or the
violation of RFRA that this Court recognized in <i>Burwell v. Hobby Lobby Stores Inc.</i>, 134 S.Ct. 2751 (2014)? (Docket
No. 15-105)<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Can HHS satisfy RFRA’s demanding test for
overriding sincerely held religious objections in circumstances where HHS
itself insists that overriding the religious objection will not fulfill HHS’s
regulatory objective – namely, the provision of no cost contraceptives to the
objector’s employees? (Docket No. 15-105).<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Supreme Court
Will Not Address Any Constitutional Issues<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The
Supreme Court is not deciding whether the notification procedure allowing
plaintiffs to “opt out” of the contraception mandate violates the Free Exercise
Clause of the First Amendment. The Supreme Court greatly limited the scope of
the Free Exercise Clause in the case of <i>Employment
Division v. Smith </i>(1990). Nor is the Court considering whether the
notification procedure violates the Establishment Clause. This law does not seek
to regulate the internal governance of a church, like the law that was struck
down in <i>Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC </i>(2012). Nor are any other constitutional
rights such as the right of parents to direct the religious education of their
children involved in any of these cases. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Issues Under
the Religious Freedom Restoration Act<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">This
case is, instead, a straightforward application of the Religious Freedom
Restoration Act, which is codified at 42 U.S.C. §2000bb. Under RFRA if a
federal law imposes a substantial burden on the exercise of a person’s
religion, then that law is unenforceable unless it is the least restrictive
means of accomplishing a compelling governmental interest. Accordingly, there
are potentially three issues that the Supreme Court will have to address:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">1.
Is the notification procedure that is required in order to “opt out” of the
employer contraception mandate in and of itself a “substantial burden” on the
exercise of the employer’s religion?<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">2.
If so, does the government have a “compelling interest” in requiring the
employer to so notify the government?<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">3.
If so, is the notification requirement the “least restrictive means” of
accomplishing the government’s interest?<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">If
the Supreme Court finds that the notification procedure does not impose a
substantial burden on the exercise of the employer’s religion, then it will
simply uphold the law and it will not proceed with the rest of the analysis.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Contrast to the <i>Hobby Lobby </i>Case<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
2014 the Supreme Court decided <i>Burwell v.
Hobby Lobby Stores, Inc</i>, in which it struck down the contraception mandate
as applied to a for-profit business that was closely held by a family with
religious objections to certain forms of contraception. In that case the
Supreme Court ruled that the contraception mandate did indeed impose a
substantial burden on Hobby Lobby Stores, Inc.’s religious exercise. The Court
assumed that making contraception available to women at no cost served a
compelling governmental interest, and it identified two less restrictive
alternatives that the federal government could have implemented instead of
requiring employer health plans to cover contraception. First, the government
could have enacted a law that used public funds to provide or pay for
contraceptive services. Speaking for the majority, Justice Alito stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The most straightforward way of doing this
would be for the Government to assume the cost of providing the four
contraceptives at issue to any women who are unable to obtain them under their
health-insurance polices due to their employers’ religious objections.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Second,
the Court noted that the notification procedure for independent non-profit
religious organizations – the same notification procedure that is being
challenged in this case – was a less restrictive alternative to the employer
mandate. Justice Alito stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In the end, however, we need not rely on
the option of a new, government-funded program in order to conclude that the
HHS regulations fail the least-restrictive-means test. HHS itself has
demonstrated that it has at its disposal an approach that is less restrictive
than requiring employers to fund contraceptive methods that violate their
religious beliefs. As we explained above, HHS has already established an
accommodation for nonprofit organizations with religious objections. 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."<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Justice
Alito was careful not to state whether the notification procedure itself was
lawful under RFRA; he only ruled that it was a “less restrictive” alternative
to the employer mandate. He said:<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">We do not decide today whether an approach
of this type complies with RFRA for purposes of all religious claims. At a
minimum, however, it 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.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">This
case – <i>Little Sisters of the Poor v.
Burwell </i>– involves the question that was left open in <i>Hobby Lobby</i>: namely, is the accommodation procedure – the requirement
that an employer notify the government that it has a religious objection to
providing contraception – in and of itself a violation of the Religious Freedom
Restoration Act?<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Accommodation
Procedure<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Religious
employers that are not integrated into a church may object to providing
contraceptive coverage in one of two ways: by notifying their insurer, or by
notifying HHS. The notice to the insurer is “Form 700,” which informs the
health insurance issuer that the organization has a religious objection to the
contraception mandate. The back of the form notifies issuers of their
obligation under the law to provide contraceptive services to employees and
beneficiaries without cost sharing. The notice to HHS must contain the
following information: (1) the name of the employer and the basis on which it
qualifies for an accommodation; (2) a statement of its objection to providing
contraceptive services; (3) the name and type of group health plan; and (4) the
name and contact information for any of the plan’s TPA’s and/or health
insurance issuers.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Is the Paperwork
Associated with the Accommodation Procedure Too Burdensome? <o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">This
case is not a challenge to the contraception mandate. It is instead a challenge
to the accommodation extended to independent religious organizations so that
they will not be subject to the contraception mandate. One of the first issues
that the Supreme Court will have to consider is whether the paperwork
associated with the notification requirement is too burdensome.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
<i>Sharpe Holdings, Inc. v. Burwell</i>, the
Eighth Circuit ruled that the notification requirement was too burdensome, both
in the level of detail that was required and because the notification had to be
updated if there were any changes. The Circuit Court noted while these other
seven cases were on appeal the Supreme Court stayed enforcement of the HHS
notification requirement and required the employers to notify HHS of its
objection to providing contraception coverage. Speaking for the Eighth Circuit,
Judge Roger Wollman stated that the notice required by the Supreme Court was “arguably
less onerous than either Form 700 or HHS Notice yet permits the government to
further its interests.”<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">None
of the other Circuit Courts found the HHS notice to be unduly burdensome. In
the <i>Little Sisters of the Poor </i>case the
Tenth Circuit was able to identify only one previous case from that circuit where
a person had challenged an accommodation procedure as too burdensome under RFRA.
That was the case of <i>United States v.
Friday</i>, decided by the Tenth Circuit in 2008. In that case the defendant
had been charged with killing a bald eagle in violation of federal law. Friday
contended that since he intended to use the eagle feathers in a Native American
religious ceremony that the law under which he was prosecuted was unenforceable
under the Religious Freedom Restoration Act. However, federal law allows people
to apply for a permit to take bald eagles for religious purposes, and Friday had
chosen not to apply for a permit. The Tenth Circuit stated in the <i>Friday </i>case that they were “skeptical
that the bare requirement of obtaining a permit can be regarded as a
‘substantial burden’ under RFRA.” The 10<sup>th</sup> Circuit concluded in <i>Friday </i>that, “Law accommodates religion;
it cannot wholly exempt religion from the reach of the law.” The Court quoted
and approved those passages in the <i>Little
Sisters of the Poor </i>case.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The “Complicity” or
“Triggering” Argument<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The
principal contention raised by the plaintiffs is that the federal law makes
them “complicit” in the sin of using contraception or using certain forms of
contraception. They argue that when they notify their insurer or HHS that they
are opting out of providing contraception services, that this “triggers” the
liability of their insurer to provide that coverage. They state that their
notification constitutes a crucial step in the administrative process that
would result in their employees gaining access to contraception at no charge.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Deference Due to
the Plaintiff on the Question of “Substantiality” of the Burden<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Like
many lawsuits this case will turn in great part upon the burden of proof. Where
do the presumptions lie on the question of the “substantiality” of the accommodation’s
burden on religion?<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
<i>Hobby Lobby </i>the Supreme Court was
extremely deferential to the plaintiff corporations on the question of whether
the contraception mandate imposed a “substantial” burden on their religious
exercise. The Supreme Court essentially conflated the question of “sincerity”
of religious belief – which the government should only rarely challenge – with
the question of substantiality of the burden that the law imposes upon those
sincere beliefs. In <i>Hobby Lobby </i>Justice
Alito stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">[I]n these cases, the Hahns and Greens and
their companies sincerely believe that providing the insurance coverage
demanded by the HHS regulations lies on the forbidden side of the line, and it
is not for us to say that their religious beliefs are mistaken or
insubstantial. Instead, our “narrow function ... in this context is to
determine” whether the line drawn reflects “an honest conviction,” and
there is no dispute that it does.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">… Because the contraceptive mandate forces
them to pay an enormous sum of money—as much as $475 million per year in the
case of Hobby Lobby—if they
insist on providing insurance coverage in accordance with their religious
beliefs, the mandate clearly imposes a substantial burden on those beliefs.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
the <i>Sharpe Holdings </i>and <i>Dordt College </i>cases the Eighth Circuit quoted
these passages from <i>Hobby Lobby</i> and
came to the same conclusion that the Supreme Court had in <i>Hobby Lobby</i>. Judge Wollman stated:
<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In light of CNS and HCC's sincerely held
religious beliefs, we conclude that compelling their participation in the
accommodation process by threat of severe monetary penalty is a substantial
burden on their exercise of religion.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The
other Circuit Courts came to the opposite conclusion mainly because they
assigned the burden of proof differently. Several of the Circuit Courts simply
held that it is for the courts, not the plaintiffs, to determine whether the
burden on free exercise of religion imposed by the accommodation is
“substantial.” For example, in <i>Priests
for Life </i>the D.C. Circuit Court stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Accepting the sincerity of Plaintiffs'
beliefs, however, does not relieve this Court of its responsibility to evaluate
the substantiality of any burden on Plaintiffs' religious exercise, and to
distinguish Plaintiffs' duties from obligations imposed, not on them, but on
insurers and [third-party administrators]. Whether a law substantially burdens
religious exercise under RFRA is a question of law for courts to decide, not a
question of fact.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The
Fifth Circuit came to the same conclusion – that the courts, not the
plaintiffs, must decide how substantial the burden on religion is – but the
court used different reasoning to come to that result. In <i>East Texas Baptist University v. Burwell </i>the Fifth Circuit
“deconstructed” the concept of “substantial burden” on religion and added an
additional element that the courts must consider – whether the law “pressures”
the person challenging the law into modifying their religious exercise.
Speaking for the Fifth Circuit, Judge Jerry Smith stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">A preliminary question—at the heart of
this case—is the extent to which the courts defer to a religious objector's
view on whether there is a substantial burden. The inquiry has three
components: (1) What is the adherent's religious exercise? (2) Does the
challenged law pressure him to modify that exercise? (3) Is the penalty for
noncompliance substantial? It is well established that the court accepts the
objector's answer to the first question upon finding that his beliefs are
sincerely held and religious. It is also undeniable that the court
evaluates the third question as one of law. Although we have not directly
addressed who decides the second question, all of our sister circuits that
have considered contraceptive-mandate cases have come to the same conclusion:
The court makes that decision. We agree. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">I
agree that this question regarding the burden of proof is “at the heart of this
case.” If the Supreme Court finds that the courts must accept the religious
objectors’ contention that the requirement of giving notification is a
“substantial burden” on the exercise of their religion, then the only way for
the government to win will be for it to prove that there is no less restrictive
way for the government to provide women with comprehensive health insurance
coverage for contraception. That may be very difficult.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">A Response to the
“Complicity” Argument – The “Third Party” Argument<o:p></o:p></span></b></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> <o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Several
of the Circuit Court opinions responded to the plaintiff’s “complicity”
argument by finding that contraceptive coverage was not caused by the
plaintiff’s action in taking the accommodation, but rather that it resulted
from the actions of third parties.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
the Seventh Circuit case involving Notre Dame University, Judge Richard Posner
invoked the analogy of a Quaker conscientious objector. Under the law a
dedicated pacifist is entitled to refuse to serve in the military. But the law
does not entitle that person to prevent others from being required to serve.
Judge Posner stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt;">Suppose it is wartime, there
is a draft, and a Quaker is called up. Many Quakers are pacifists, and their
pacifism is a tenet of their religion. Suppose the Quaker who's been called up
tells the selective service system that he's a conscientious objector. The
selective service officer to whom he makes this pitch accepts the sincerity of
his refusal to bear arms and excuses him. But as the Quaker leaves the
selective service office, he's told: “you know this means we'll have to draft
someone in place of you”—and the Quaker replies indignantly that if the
government does that, it will be violating his religious beliefs. Because his
religion teaches that<span class="apple-converted-space"> </span><em>no one</em><span class="apple-converted-space"> </span>should bear arms, drafting another
person in his place would make him responsible for the military activities of
his replacement, and by doing so would substantially burden his own sincere
religious beliefs. Would this mean that by exempting him the government had
forced him to “trigger” the drafting of a replacement who was not a
conscientious objector, and that the Religious Freedom Restoration Act would
require a draft exemption for both the Quaker and his non-Quaker replacement?<span class="apple-converted-space"> </span>That seems a fantastic suggestion. Yet
confronted with this hypothetical at the oral argument, Notre Dame's counsel
acknowledged its applicability and said that drafting a replacement indeed
would substantially burden the Quaker's religion.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span class="apple-converted-space"><span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt;">This “third party”
argument was also developed extensively in the Sixth Circuit case <i>Michigan Catholic Conference and Catholic
Family Services v. Burwell</i>. Writing for the court,<i> </i>Judge Karen Moore reasoned that the plaintiffs were not required
to provide, pay for, or “trigger” contraceptive coverage; instead,
contraceptive coverage resulted from the actions of third parties, namely the
government and the health insurer:<o:p></o:p></span></span></div>
<div class="MsoNormal" style="margin-left: .5in; text-indent: -.5in;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">The appellants are not required to “provide”
contraceptive coverage. They are not required physically to distribute
contraception to their employees upon request, and the eligible organization's
health plan does not host the coverage…. Thus, although the insurance issuer or
third-party administrator will provide contraceptive coverage, the appellants
will not.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">The appellants are not required to “pay for”
contraceptive coverage. When an insurance issuer receives the
self-certification form, it “must ... Provide separate payments for any
contraceptive services.” </span><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">…</span><span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Submitting the self-certification form to the
insurance issuer or third-party administrator does not “trigger” contraceptive
coverage; it is federal law that requires the insurance issuer or the
third-party administrator to provide this coverage. …<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">The appellants allege that providing, paying
for, and/or facilitating access to contraceptive coverage burdens their
exercise of religion. As discussed <i>supra,</i> the exemption and
accommodation framework does not require them to do any of these things. The
framework does not permit them to prevent their insurance issuer or
third-party administrator from providing contraceptive coverage to their
employees pursuant to independent obligations under federal law. However, the
inability to “restrain the behavior of a third party that conflicts with the
[appellants'] religious beliefs,” does not impose a burden on the
appellants' exercise of religion. “[W]hile a religious institution has broad
immunity from being required to engage in acts that violate the tenets of its
faith, it has no right to prevent other institutions, whether the government or
a health insurance company, from engaging in acts that merely offend the
institution.”<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">… </span><span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt;">The government's imposition
of an independent obligation on a third party does not impose a substantial
burden on the appellants' exercise of religion.” <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
finding that the accommodation provided under the Affordable Care Act does not
violate the Religious Freedom Restoration Act, several of the Circuit Courts
including the Fifth Circuit invoked two prior decisions of the Supreme Court
finding that religious objectors did not have the right to control the actions
of third parties. In <i>Bowen v. Roy </i>(1986)
parents objected to the government’s use of a social security number for their
daughter because they believed that it would “rob her spirit.” In <i>Lyng v. Northwest Indian Cemetery Protective
Association </i>(1988) the plaintiffs objected to the government’s plans to
build a road and permit logging on federal land that the plaintiffs used for
religious purposes. In each case the Supreme Court ruled that the religious
objectors had no right to prevent the government from taking action that was
contrary to the plaintiffs’ beliefs. The government was free to use people’s
social security numbers and to develop federal land, despite the plaintiffs’
religious objections to those actions.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt;">The Third Circuit agreed with these conclusions about the inability
of religious objectors to control the actions of third parties. In <i>Geneva College v. Secretary of the U.S.
Department of Health and Human Services</i>, the Third Circuit drew a
distinction between laws that inhibit or compel the action of a citizen, and
laws that govern the rights and responsibilities of other persons. Speaking for
the Circuit Court, Judge Marjorie Rendell stated:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt;">Thus, the case law clearly
draws a distinction between what the law may impose on a person over religious
objections, and what it permits or requires a third party to do. Although that
person may have a religious objection to what the government, or another third
party, does with something that the law requires to be provided (whether it be
a Social Security number, DNA, or a form that states that the person
religiously objects to providing contraceptive coverage), RFRA does not
necessarily permit that person to impose a restraint on another's action based
on the claim that the action is religiously abhorrent.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Rulings That the
Accommodation Procedure Does Not Substantially Burden Religion<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">All
of the Circuit Courts aside from the Eighth Circuit rejected the “complicity”
and “triggering” arguments of the plaintiffs. The courts found that far from
making the religious employers “complicit” with coverage for contraception, the
accommodation permitted them to “opt out” of the coverage plan. And the courts
ruled that the accommodation procedure did not “trigger” contraception
coverage; instead, such coverage was triggered by federal law and carried out
by the insurer, not the employer. All of these courts concluded that, with the
accommodation procedure in place, the employer was not required to provide, pay
for, or facilitate contraceptive coverage. For example, in the <i>Little Sisters of the Poor </i>case the
Tenth Circuit stated:<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">We conclude the accommodation does not
substantially burden Plaintiffs' religious exercise. The accommodation relieves
Plaintiffs from complying with the Mandate and guarantees they will not have to
provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not
“trigger” or otherwise cause contraceptive coverage because federal law, not
the act of opting out, entitles plan participants and beneficiaries to
coverage. Although Plaintiffs allege the administrative tasks required to<span class="apple-converted-space"> </span>opt out of the Mandate make them
complicit in the overall delivery scheme, opting out instead relieves them from
complicity. Furthermore, these <em>de minimis</em><span class="apple-converted-space"> </span>administrative tasks do not
substantially burden religious exercise for the purposes of RFRA.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<b><span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">The Other Third
Parties Affected: Female Employees<o:p></o:p></span></b></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">Another important consideration in this case is the effect that
the employer’s decision will have on the legal rights of their employees. The
Affordable Care Act grants millions of women a statutory right of access to
contraception at no charge. The independent religious organizations in this
case have a religious objection to the use of contraception, and the central
issue in this case is which group’s rights will prevail. <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">In <i>Hobby Lobby </i>the
Supreme Court was able to accommodate the rights of both groups – the result
protected the rights of both religious employers and the rights of their female
employees. Both the Affordable Care Act and the Religious Freedom Restoration
Act were interpreted so that businesses like Hobby Lobby Stores would not have
to provide coverage for contraception, but that their insurers would, ensuring
that women would receive the insurance coverage that the law required.<o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">However, if the notification procedure itself is also illegal –
if religious employers do not even have to notify the government that they are
refusing to provide coverage for contraception – then the question arises
whether female employees will in fact be denied that coverage. In the <i>Priests for Life </i>case the D.C. Circuit
found that striking down the notification requirement would indeed threaten
women with the loss of those benefits. Speaking for the Fifth Circuit, Judge
Cornelia Pillard stated: <o:p></o:p></span></div>
<div class="MsoNormal" style="line-height: 15.75pt;">
<br /></div>
<div class="MsoNormal" style="line-height: 15.75pt; margin-left: .5in;">
<span style="color: #252525; font-family: "Times New Roman",serif; font-size: 12.0pt; mso-fareast-font-family: "Times New Roman";">This case also differs from <i>Hobby
Lobby</i> in another crucial respect: In holding that Hobby Lobby must be
accommodated, the Supreme Court repeatedly underscored that the effect on
women's contraceptive coverage of extending the accommodation to the
complaining businesses “would be precisely zero.” <i>Id. </i>at 2760; <i>see also id. </i>at
2781 n. 37 (“Our decision in these cases need not result in any detrimental
effect on any third party.”); <i>id. </i>at
2782 (extending accommodation to Hobby Lobby would “protect the asserted
needs of women as effectively” as not doing so). Justice Kennedy in his
concurrence emphasized the same point, that extending the accommodation to
for-profit corporations “equally furthers the Government's interest but does
not impinge on the plaintiffs' religious beliefs.” <i>Id. </i>at 2786. The relief Plaintiffs seek here, in contrast, would
hinder women's access to contraception. It would either deny the contraceptive
coverage altogether or, at a minimum, make the coverage no longer seamless from
the beneficiaries' perspective, instead requiring them to take additional steps
to obtain contraceptive coverage elsewhere.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">If
the Fifth Circuit is correct that relieving employers of the obligation to give
notice of their objection to contraception would abrogate their employees’
right to contraception coverage, then the Supreme Court will have a very
difficult choice indeed. <o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The Other Less
Restrictive Alternative – A Separate Government Program Paying for
Contraception<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">If
the Supreme Court finds that the notification procedure imposes a substantial
burden on the exercise of the employers’ religion, then under RFRA the notification
procedure will be struck down unless the government can prove that there is no
less restrictive alternative that will guarantee women access to contraception
at no charge. That may be difficult to prove, in light of <i>Hobby Lobby</i>. As noted above, the Supreme Court has already stated
that the most “straightforward” way of providing and paying for women’s birth
control would be for the government to set up a separate program for that
purpose. That is, of course, easy for a court to say, but perhaps difficult for
a legislature to do. The Supreme Court will have to decide whether the
Religious Freedom Restoration Act may stand as a barrier to significant legal
rights that women currently enjoy under federal law.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Self-Insurers<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Self-insured
employers with religious objections to contraception will assert two arguments
in the Supreme Court. First, they will contend that even though the law
provides that their third-party administrators must bear the cost of
contraception coverage, these costs may in fact be passed on to them. The Fifth
Circuit found that this claim was speculative and therefore not ripe for
judicial review.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Some
religious organizations that are not integrated into a church nevertheless
participate in health plans that are self-insured by a church. The government
lacks the authority to order a self-insured church to cover contraceptive
services. The non-profit organizations that participate in those plans will contend
that it makes no sense to require them to notify HHS that they have a religious
objection to contraception coverage because the government won’t be able to order
anyone else to provide contraception coverage anyway. This argument has merit
under the “least restrictive means” prong of RFRA. However, if the Supreme Court
rules that the notification procedure does not impose a substantial burden on
the exercise of the organization’s religion, the least restrictive means prong
will not come into play. If the religious accommodation developed by HHS does
not substantially burden the organization’s exercise of religion, it will be
upheld by the Court even as to these types of organizations.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Summary<o:p></o:p></span></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">In
summary, in these seven consolidated cases the Supreme Court will determine
whether it is lawful, under the Religious Freedom Restoration Act, to require
religious organizations that are not integrated into a church to notify their
insurer or the government if they wish to “opt out” of the employer health
insurance coverage for contraception. The principal issue for the court to
decide is whether the notification requirement imposes a substantial burden on
the free exercise of religion.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">APPENDIX<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Consolidated
Supreme Court Cases<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> The Supreme Court has certified
seven cases for review in this matter. In all of these cases the circuit courts
ruled that the notification procedure does not violate the Religious Freedom
Restoration Act. The Court ordered that petitioners in three of cases will
submit one brief on appeal, and the petitioners in the other four cases will
submit a separate brief on appeal. The Supreme Court Docket Numbers of each of
these cases, and the citations to the Circuit Court decisions, are set forth
below.<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Cases
on the First Brief:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">14-1418
<i>David A. Zubik v. Burwell</i>, 778 F.3d
422 (3<sup>rd</sup> Cir., February 11, 2015)<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">14-1453
<i>Priests for Life, et al. v. Department of
Health and Human Services, et al</i>., 772 F.3d 229 (D.C. Cir., November 14
(2014)<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">14-1505
<i>Roman Catholic Archbishop of Washington
et al. v. Burwell</i>, 772 F.3d 229 (D.C. Cir., November 14, 2014)<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Cases
on the Second Brief:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">15-35
<i>East Texas Baptist University, et al., v.
Burwell</i>, 793 F.3d 449 (5<sup>th</sup> Cir., June 22, 2015)<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">15-105
<i>Little Sisters of the Poor Home for the
Aged, Denver, Colorado, et al. v. Burwell</i>, 794 F.3d 1151 (10<sup>th</sup>
Cir., July 14, 2015)<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">15-119
<i>Southern Nazarene University, et al. v.
Burwell</i>, 794 F.3d 1151 (10<sup>th</sup> Cir., July 14, 2015)<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">15-191
<i>Geneva College v. Sylvia Burwell</i>, 778
F.3d 422 (3<sup>rd</sup> Cir. February 11, 2015)<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Other Circuit
Court Decisions on this Matter<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">University of
Notre Dame v. Burwell</span></i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">,
786 F.3d 606 (7<sup>th</sup> Cir., May 19, 2015) (upholding accommodation under
RFRA).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Michigan Catholic
Conference and Catholic Family Services v. Burwell</span></i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">, 755 F.3d 372 (6<sup>th</sup>
Cir., June 11, 2014) (upholding accommodation under RFRA).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Sharpe Holdings
Inc. v. Burwell </span></i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">801
F.3d 927, and <i>Dordt College v. Burwell</i>
801 F.3d 946 (8<sup>th</sup> Cir., Sept. 17, 2015) (holding that the
accommodation violates RFRA).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The <i>Hobby Lobby </i>Case<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Burwell v. Hobby
Lobby Stores, Inc.</span></i><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">,
134 S.Ct. 2751 (June 30, 2014) (striking down contraception mandate under RFRA
for not being the “least restrictive means” of extending contraceptive coverage
to female employees).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">News and Analysis<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Laurie
Sobel and Alina Salganicoff, <i>Round 2 on
the Legal Challenges to Contraceptive Coverage</i>: <i>Are Nonprofits “Substantially Burdened” by the Accommodation</i>,
Kaiser Family Foundation (Nov. 9, 2015), at </span><a href="http://kff.org/womens-health-policy/issue-brief/round-2-on-the-legal-challenges-to-contraceptive-coverage-are-nonprofits-substantially-burdened-by-the-accommodation/"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">http://kff.org/womens-health-policy/issue-brief/round-2-on-the-legal-challenges-to-contraceptive-coverage-are-nonprofits-substantially-burdened-by-the-accommodation/</span></a><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">SCOTUSblog
coverage at </span><a href="http://www.scotusblog.com/case-files/cases/east-texas-baptist-university-v-burwell/"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">http://www.scotusblog.com/case-files/cases/east-texas-baptist-university-v-burwell/</span></a><span class="MsoHyperlink"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> <o:p></o:p></span></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Lyle
Denniston, <i>Court to Hear Birth Control
Challenges</i>, SCOTUSblog (Nov. 6, 2015), at </span><a href="http://www.scotusblog.com/2015/11/court-to-hear-birth-control-challenges/"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">http://www.scotusblog.com/2015/11/court-to-hear-birth-control-challenges/</span></a><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">The
Becket Fund for Religious Liberty, <i>HHS
Mandate Information Central </i>chart at </span><a href="http://www.becketfund.org/hhsinformationcentral/"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">http://www.becketfund.org/hhsinformationcentral/</span></a><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">Emma
Green, <i>The Little Sisters of the Poor Are
Headed to the Supreme Court</i>,<i> </i>The
Atlantic (Nov. 6, 2015), at </span><a href="http://www.theatlantic.com/politics/archive/2015/11/the-little-sisters-of-the-poor-are-headed-to-the-supreme-court/414729/"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;">http://www.theatlantic.com/politics/archive/2015/11/the-little-sisters-of-the-poor-are-headed-to-the-supreme-court/414729/</span></a><span style="font-family: "Times New Roman",serif; font-size: 12.0pt;"> <o:p></o:p></span></div>
<br />
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Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-90710758001260052462015-10-02T12:02:00.002-04:002015-10-02T12:02:44.494-04:00Consistent with the Constitution, What Can We Do About Gun Violence?Guns don't kill people. People kill people. But they mainly use guns to kill people. Every year twelve thousand Americans are gunned down by other Americans; in addition there are more than twenty thousand American suicides by gun annually. In the past 20 years we have lost over 600,000 Americans to gun violence. That's more than we lost in combat in World War II; twelve times more than we lost in Vietnam; thirty times more than we lost in Korea; one hundred times more than we lost in Kuwait, Iraq, and Afghanistan combined; and three hundred times more than we have lost to terrorists. In fact, over the last 20 years we have lost more Americans to gun violence than we lost in combat in all of our wars and every terrorist attack over the last 80 years.<br />
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We think of war as a terrible scourge. Domestic gun violence is four times as deadly as war.<br />
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It is way past time for this country to adopt common-sense gun control legislation. What laws would be constitutional?<br />
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<a name='more'></a>As currently interpreted the Second Amendment protects the right of the people to own handguns for personal self-defense, so we can't ban guns altogether. But there is a lot of room for common-sense laws that will protect the right of the people not to be gunned down in theaters, schools, and the streets.<br />
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<b>1. Laws banning the manufacture, sale, and possession of certain types of weapons.</b> No-one would seriously contend that people have the right to own grenades, rocket launchers, or machine guns. There is no legitimate reason for people to own dangerous ordnance. Those weapons are not necessary for self-defense nor are they used for hunting. Nor is there any legitimate reason for people to own weapons like the Colt AR-15, a semiautomatic rifle modeled after the military's M-16. The AR-15 can shoot 800 rounds per minute, and has been used in a number of recent mass murders. It is time to remove all automatic and semiautomatic weapons from the civilian arsenal. Their manufacture must be strictly regulated and sale restricted to the military and police.<br />
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<b>2. Background checks. </b>Thanks to various loopholes such as those for "gun shows" forty percent of guns are sold in the U.S. without background checks on the purchasers. Until those loopholes are closed any other laws regulating who may purchase a gun -- criminals, insane persons, or domestic abusers -- are useless. Background checks should be thorough, accurate, and inexpensive ... but not necessarily speedy. In light of the fact that so many people commit suicide shortly after purchasing a gun, a "cooling-off period" wouldn't be a bad idea.<br />
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<b>3. Gun licensing.</b> It's not enough to regulate who may purchase a gun. If we are going to keep guns out of the hands of persons who cannot be trusted with them it's also necessary to regulate who may own or possess a gun. No criminal has the right to own a gun. No person with mental instability has the right to own a gun. No domestic abuser has the right to own a gun. The only way to protect the rest of us is to require people to apply for a license to have a gun.<br />
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<b>4. Gun registration.</b> Fewer than half of all murders are solved. Gun registration is a simple and direct way to keep track of who has which guns. Gun registration is also the only way to prevent people from accumulating large arsenals of firearms. People have a constitutional right to own a firearm for the purpose of personal self-defense; people don't have a constitutional right to own guns just because they like guns. If someone wants to collect a large number of guns as a hobby, those weapons should be permanently disabled.<br />
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<b>5. Carry permits. </b>The Supreme Court has ruled that people have a constitutional right to possess a handgun in their home for purposes of self-defense. It also makes sense for certain businesses -- bars, gas stations, and convenience stores -- to keep a gun handy. Persons in certain occupations -- those working security in different settings or people who regularly carry large amounts of cash or other valuables -- need to be able to carry a gun in public. Hunters obviously must have the right to transport and carry a gun in the field. Otherwise the right to carry a firearm outside the home should be strictly limited. This will protect all of us.<br />
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<b>6. Other laws.</b> Limits on the sale of ammunition; ammunition fingerprinting; and gun insurance all make sense. No-one needs more than a few rounds of ammunition at one time for hunting or self-defense. If someone is shot at there should be no objection to finding out whose ammunition was used. And if an injury or death occurs from the use of a firearm there should be funds available to compensate the victim or the victim's family.<br />
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It's time, folks. We have to begin to address this terrible problem. You may not support all of the proposals I've outlined above, but if you agree with any of them, please find an organization whose goals are consistent with your values. Here are some organizations promoting a variety of responsible gun laws. Take a look at them and pick one you can support.<br />
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The Brady Campaign to Prevent Gun Violence, at <a href="http://www.bradycampaign.org/">http://www.bradycampaign.org/</a>.<br />
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The Coalition to Stop Gun Violence, at <a href="http://csgv.org/">http://csgv.org/</a>.<br />
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The Violence Policy Center, at <a href="http://www.vpc.org/">http://www.vpc.org/</a>.<br />
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Americans for Responsible Solutions, at <a href="http://americansforresponsiblesolutions.org/">http://americansforresponsiblesolutions.org/</a>.<br />
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Mayors Against Illegal Guns, at <a href="http://everytown.org/mayors/">http://everytown.org/mayors/</a>.<br />
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<br />Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-10141951566628757582015-09-29T10:02:00.000-04:002015-09-29T10:02:15.627-04:00The Constitutionality of Defunding Planned ParenthoodWould it be constitutional for a state or the federal government to defund Planned Parenthood? The answer lies in the interpretation of the Spending Clause and the First Amendment.<br />
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<a name='more'></a>Planned Parenthood is a private organization providing women's health services including birth control, cancer screening, and gynecological care. It is an approved Medicaid provider, meaning that it qualifies for state and federal funding to provide these health services to women in poverty. Under federal law no Medicaid funds may be spent on abortions or abortion counseling; accordingly, any abortion services conducted by Planned Parenthood -- about 3% of its operations -- are performed separate and apart from any government-funded programs.<br />
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Recently a number of undercover videos were released regarding the role of Planned Parenthood in securing fetal tissue for scientific research. Persons who are opposed to abortion or to fetal tissue research wish to disqualify Planned Parenthood's eligibility to be a Medicaid provider. Congress is considering legislation that would accomplish this, and Louisiana Governor Jindal has issued an executive order announcing his intention to remove Planned Parenthood as an approved provider in that state, despite the fact that the two Planned Parenthood clinics in Louisiana do not perform abortions.<br />
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Would it be constitutional for the state or federal government to stop funding Planned Parenthood?<br />
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Congress' power under the Spending Clause is broader than its power under the Commerce Clause, and its spending power is broader than the regulatory power of the states. For example, neither Congress nor the states may make it illegal for a woman to terminate a pregnancy prior to viability of the fetus (approximately 24 weeks). However, Congress and the states may choose not to provide funding for abortions. The government has the power -- the people have the right -- to favor childbirth over abortion, and have no duty under the Constitution to fund abortions. <i>Maher v. Roe </i>(1977). Nor is there any duty to fund abortion counseling or referrals as part of a program of government-provided health care. <i>Rust v. Sullivan </i>(1991).<br />
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However, there are limits to Congress' power under the Spending Clause. Congress may decline to fund certain activities; but it has no power to impose conditions on the receipt of funding that are unrelated to the purpose of the funding. In short, Congress may refuse to fund abortions and abortion counseling, but it may not prohibit an organization from providing abortion services in the absence of government funding.<br />
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This is a well-established principle. Perhaps the most significant Supreme Court case in recent years delineating the limitations on Congress' power under the Spending Clause is <i>NFIB v. Sebelius </i>(2012) where the Supreme Court struck down a provision of the Affordable Care Act that would have coerced the states into expanding Medicaid. The ACA would have empowered the federal government to withdraw existing Medicaid funding from any state that refused to expand Medicaid -- an "all-or-nothing" approach. The Supreme Court ruled that existing Medicaid (serving certain identified groups such as the disabled) and expanded Medicaid (serving all persons below the poverty level) were two separate programs, and that it was unconstitutional for Congress make participation in the expanded Medicaid program a condition to participation in the existing program. This is an example of the principle that any condition or limitation on eligibility for government funding must be related to the purpose of the funding.<br />
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The Supreme Court reiterated this point the following year in <i>Agency for International Development v. Alliance for Open Society International</i> (2013). Congress agreed to fund efforts to combat AIDS and HIV, but it placed two conditions on the receipt of those funds. First, no organization could spend any of those funds to promote the legalization of prostitution. Second, any organization receiving these funds must expressly adopt a formal policy opposing the legalization of prostitution. The Supreme Court upheld the first requirement, because Congress has the power to direct how taxpayer funds may be spent. If an organization applies for federal funding, it should of course spend those funds for the purposes, and only the purposes, for which the funds are granted. But the Court struck down the second condition, finding that the funds were not being awarded for the purpose of outlawing prostitution but rather for the purpose of fighting AIDS. The requirement that grantees must expressly oppose the legalization of prostitution was not sufficiently related to the purpose of the funding. It was an "unconstitutional condition" on the receipt of the funds. Chief Justice Roberts described the applicable standard in these words:<br />
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In the present context, the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program -- those the specify the activities Congress wants to subsidize -- and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.</blockquote>
It is clearly constitutional for Congress and the states to refuse to fund abortion services. It is not constitutional to prohibit any organization receiving funds for women's health services from performing abortion services without government funding. So long as Planned Parenthood keeps its government-funded health service activities separate from abortion services the government may not disqualify it from eligibility as a Medicaid provider.Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0tag:blogger.com,1999:blog-8014260034594922331.post-59332955314853962042015-09-14T08:56:00.002-04:002015-09-14T08:56:51.993-04:00County Clerk Kim Davis and the Establishment ClauseCounty Clerk Kim Davis contends that she has a constitutional right to refuse to issue marriage licenses to same-sex couples under the Free Exercise Clause of the Constitution. But she forgets that Freedom of Religion consists of two rights: not only the right of the individual to the free exercise of religion, but also the prohibition against the establishment of religion by the government.<br />
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<a name='more'></a>After the Supreme Court ruled in <i>Obergefell v. Hodges </i>that same-sex couples have the same right to marry as opposite-sex couples, Davis stopped issuing any marriage licenses at all. Her actions are clearly discriminatory. Were the Supreme Court to reverse its decision in <i>Obergefell</i>, she would presumably resume her lawful duty to issue marriage licenses to all couples who are qualified under the law. Her decision to stop issuing licenses is analogous to those of certain southern states and counties who unconstitutionally closed the public schools rather than comply with <i>Brown v. Board of Education</i>. The Constitution is not blind to the reasons for government action or inaction.<br />
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The first provision of the Bill of Rights is the Establishment Clause, and the second is the Free Exercise Clause. The First Amendment states:<br />
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.</blockquote>
Were Davis acting as a private party -- as a wedding photographer or baker or florist -- neither the Establishment Clause not the Equal Protection Clause would apply. But Davis is a government employee, and her official actions are attributable to the government -- they are state action. While she has a personal right to exercise her religion, as a government official she may not to any extent establish religion or violate other people's rights to equal protection of the law. Yet that is precisely what she wishes to do. She claims the right, based upon her personal religious beliefs, to take official action in accord with her religion in discriminating against same-sex couples who seek to marry. Not only does this violate those couples' rights to equal protection; it violates their right to freedom from government establishment of religion.<br />
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Government officials are free to express their religious beliefs in their personal lives as well as in speeches and editorials. The government may even conduct ceremonial prayers in settings that are not coercive. But freedom of religion does not give a government official the right to refuse to perform her duty under the law. Quite the contrary. Under the Establishment Clause the government may not even coerce individuals into participating in religious exercise; it certainly may not use religion as a reason to violate the law and deprive people of their rights.<br />
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<br />Wilson Huhnhttp://www.blogger.com/profile/06024387435276579365noreply@blogger.com0