In NFIB v. Sebelius, the Obamacare Supreme Court decision, a majority of justices got two things right and one HUGE thing wrong. Five (Roberts, Scalia, Thomas, Kennedy, and Alito) said the individual mandate was not covered under the Commerce Clause (because not buying something is not commerce) and seven (the same five, plus Breyer and Kagan) said the federal government could not hold state Medicaid money hostage if states do not set up their own exchanges. Roberts, Ginsburg, Sotomayor, Breyer, and Kagan did rule that the individual mandate was part of Congress’ power under the Taxation Clause even though it was not written nor sold to the American public as a tax; Ginsburg’s dissent shows the hypocrisy of the four Democrats in that they wanted the mandate to be based on the Commerce Clause (and she wasn’t at all nice about it), but ruled with Roberts anyway on the spurious Taxation Clause argument.
Which brings us to yesterday when three Democrat politicians masquerading as federal appellate court judges ruled unanimously in Liberty University v. Lew to affirm a district court decision to not only uphold the recently delayed employer mandate but also Sebelius’ contraception/abortifacient mandate. The 4th Circuit panel “judges” who made this ridiculous ruling are a Clinton appointee (Motz) and two Obama appointees (Wynn and Davis); gee, not to much judge shopping here, right? That should pretty much tell you how this was going to go. They had originally vacated the district court decision on Anti-Injunction Act grounds, but were remanded by the Supreme Court in the NFIB case to vacate the initial decision and rule on the merits. Unfortunately, there aren’t any merits to their decision.
Like good Democrats, the “judges” ruled the employer mandate was covered under the judicial activist expansion of the Commerce Clause. They cited the usual cases, especially Wickard v. Filburn. But as with the individual mandate, the Commerce Clause as it is actually written does not apply, even under it’s expanded role. Contrary to public opinion, employers had never before been required to offer health insurance to their employees. It was introduced as a benefit specified in union contracts, then offered in order to attract the best workers, being used to gain a competitive edge when hiring. Over the decades, more and more companies, especially the bigger ones, provided this benefit. At the same time, the states and the federal government introduced coverage standards for those employers who had this benefit. But it was always optional.
Simplified, this part of the 4th Circuit panel ruling would have us believe the employer mandate is covered under the Commerce Clause because companies already engage in regulated commercial activity so this is just an add-on to it. That is ridiculous on its face. As with the individual mandate, not providing health insurance is the same as not buying health insurance; in other words, doing nothing is not commerce. The “judges” in the Liberty University decision here are trying to claim they are not compelling any new commerce. But that is exactly what they are doing, forcing someone, an employer, to purchase something they didn’t have to purchase before for the simple reason that the government wants them to. By any stretch of the imagination, the only way the employer mandate is as constitutional as the individual mandate is on the questionable Taxation Clause grounds Roberts gave in NFIB v. Sebelius. At least that would be consistent. Since the 4th Circuit is made up of mostly Democrats, I would expect an appeal directly to the Supreme Court will take place to bypass the full circuit court upholding the panel decision.
As bad as that part of the ruling on the employer mandate was, the ruling shamefully eviscerates both the Establishment and Free Exercise Clauses along with the Religious Freedom Restoration Act (RFRA) in its handling of abortion in the employer and individual mandate. According to the “judges”, they say this on page 50:
Furthermore, the Act allows an individual to obtain, and an employer to offer, a plan that covers no abortion services at all, not even excepted services. See 42 U.S.C. § 18023(b)(1)(A)(i).9
Note the number 9 at the end. Here’s what number 9 says at the bottom of the page:
9 Plaintiffs also argue that a requirement “that individuals and employers pay at least one dollar per person per month directly into an account to cover elective abortions” unlawfully burdens their religious exercise. Post-Remand Opening Br. 37 (citing 42 U.S.C. § 18023(b)(2)). But this provision applies only if individuals choose to enroll in a plan through a health insurance exchange that elects to cover abortions, for which federal funding may not be used. Post-Remand Resp. Br. 34-35 n.13; see 42 U.S.C. § 18023(b)(1)(B)(i), (b)(2)(A)-(B).
Here it is in English. Liberty University hires someone. The employer can offer a health insurance plan that has no abortion coverage whatsoever, even for cases of rape, incest, or if the life of the mother is in danger. The new employee doesn’t like those options because they want elective abortions to be covered. So the employee gets a health insurance policy from an exchange that receives no federal funding. And guess what? The employer has to pay at least one dollar into the account; Liberty University has the “privilege” of paying for abortion coverage.
And how do the “judges” get away with it? By lying (citations omitted; underlined emphasis from original):
A neutral law of general applicability thus does not violate the Free Exercise Clause. The Act is just such a law. It has no object that “infringe[s] upon or restrict[s] practices because of their religious motivation,”…(emphasis added), and imposes no “burden only on conduct motivated by religious belief,”…(emphasis added).
Except that it does, as I highlighted previously.
And they do the same with the RFRA:
Plaintiffs’ RFRA claim fares no better. RFRA provides that, “even if the burden results from a rule of general applicability,” the “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b).
Thus, by its own terms, RFRA directs application of strict scrutiny only if the Government “substantially burden[s]” religious practice.
You have to wonder about people like these “judges”. Who knew it was in the government’s interest to make sure health insurance covers abortions, what Liberty University would call murder of babies still in the womb. Of course, the “logic” defies description. It is absolutely a hugely substantial burden to force an employer to pay for what it considers a complete violation of the employer’s religious beliefs, a violation of the Free Exercise Clause. And if it is in the federal government’s belief that employers must pay, even in part, for abortions, this is a violation of the Establishment Clause as well. This portion of the ruling is entirely indecent and bereft of any humanity, let alone allowed by the Constitution.
While this case was still being considered, the Obama regime started the implementation of its contraception/abortifacient mandate; Liberty University added a challenge to the mandate in an amended complaint. And how did these Democrat “judges” handle it? They punted. They wanted no part of it. Effectively, Liberty University would have to file a new challenge with the district court and proceed from there, despite the fact that other courts are taking up challenges to this mandate already. They make a special point to note that the mandate covers FDA-approved contraception, and none of those are considered by the FDA as abortifacients since they supposedly don’t end a pregnancy by killing an already-fertilized egg. Like it or not, however, some religious organizations consider the use of any artificial contraception a violation of beliefs–e.g., the Catholic Church–and these will have to be dealt with. But apparently not by this ruling.
Ace sums it up best at the end of this post:
It’s just incredible. I don’t recognize this country anymore.