July 09, 2013
Michael McConnell on the President's lack of authority to delay the employer mandate
Writing in the Wall Street Journal, Michael McConnell, a friend to many of us at MOJ, writes:
President Obama's decision last week to suspend the
employer mandate of the Affordable Care Act may be welcome relief to businesses
affected by this provision, but it raises grave concerns about his understanding
of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that
the president "shall take Care that the Laws be faithfully executed." This is a
duty, not a discretionary power. While the president does have substantial
discretion about how to enforce a law, he has no discretion about
whether to do so.
This matter—the limits of executive power—has deep
historical roots. During the period of royal absolutism, English monarchs
asserted a right to dispense with parliamentary statutes they disliked. King
James II's use of the prerogative was a key grievance that lead to the Glorious
Revolution of 1688. The very first provision of the English Bill of Rights of
1689—the most important precursor to the U.S. Constitution—declared that "the
pretended power of suspending of laws, or the execution of laws, by regal
authority, without consent of parliament, is illegal."
The employer mandate in the Affordable Care Act contains
no provision allowing the president to suspend, delay or repeal it. Section
1513(d) states in no uncertain terms that "The amendments made by this section
shall apply to months beginning after December 31, 2013." Imagine the outcry if
Mitt Romney had been elected president and simply refused to enforce the whole
This is not the first time Mr. Obama has suspended the
operation of statutes by executive decree, but it is the most barefaced....
As the Supreme Court said long ago (Kendall v. United States, 1838),
allowing the president to refuse to enforce statutes passed by Congress "would
be clothing the president with a power to control the legislation of congress,
and paralyze the administration of justice."
Hi Professor Scaperlanda,
What Professor O'Connell is writing about has been going on ever since at least the Nixon Administration and the War Powers Act. Every president since and including President Nixon, has sought to expand the power of the executive and they've been largely able to do so due to a complicit Congress. And the same has happened in this case. To me, this proves again that there really isn't such a thing as a federalist because no one on either side cares how laws are enacted or usurped so long as it fits with their point of view.
Posted by: Edward Dougherty | Jul 9, 2013 12:43:04 PM
The selective concern for a "period of royal absolutism" by "Mr." Obama is tiresome and welcomes cynicism. Did McConnell have such op-eds during the Bush Administration? In past administrations as Mr. Dougherty suggests warranted them?
The law is not being "suspended" -- it is being enforced as a whole and for practical reasons (it would be helpful if we could trust Congress to work with the President to deal with practicalities but the House is more interested for about the 40th time to pass a repeal of the law as a whole) a certain aspect is being delayed. In a perfect world, this might not be good practice, but in the real world, it is done from locality to nation-wide all the time.
As with the selective discussion of religious liberty on this blog regarding the contraceptive mandate and SSM, this breeds cynicism.
Posted by: Joe | Jul 9, 2013 12:49:37 PM
I have never seen the discussion here of Religious Liberty issues as being "selective " .
Posted by: JH | Jul 9, 2013 12:59:10 PM
JH, "never" tends for me to be a word to avoid.
Anyways, I and others have voiced the concern in the past, and don't recall you challenging us. But, if I missed something, I duly note such.
One "selective" discussion would be the special continual focus on the contraceptive mandate, the discussions repeatedly not dealing with the religious liberty concerns of employees. It is left to people like me or sean to voice such things. Also, as I have repeatedly noted, religious liberty concerns about ACA would arise whenever an employer would need to cover something against their religious beliefs. But, MOJ only focuses on a few matters of particular interest in Catholic doctrine.
This is not surprising given this is a Catholic blog, but if "religious liberty" is our concern, not the wrongs of specific practices, the wider issues has to be addressed. On ACA, they have been selectively so. Even if in various cases, not "always" at all, MOJ has wider interests.
I find myself repeating myself, so with respect, I will leave it there.
Posted by: Joe | Jul 9, 2013 1:21:35 PM
"the discussions repeatedly not dealing with the religious liberty concerns of employees."
Because there are no religious liberty concerns of employees raised by the mandate. Private employers are not the State for First Amendment purposes.
Posted by: Brian English | Jul 9, 2013 4:26:46 PM
“... there are no religious liberty concerns of employees raised by the mandate. Private employers are not the State for First Amendment purposes.”
This is a common error. Because the State Action doctrine bars employee suits against employers in this instance, some commentators mistake this for the absence of “any concern”. These employee concerns are legitimate (even if not actionable) and justify the State’s mandates which protect the employee’s legitimate religious liberty interests.
This is another point frequently mentioned in the past on this site.
Posted by: sean samis | Jul 9, 2013 4:52:26 PM
"This is a common error."
It is not an error of any kind.
"These employee concerns are legitimate (even if not actionable) and justify the State’s mandates which protect the employee’s legitimate religious liberty interests."
So the State gets to force employers, in violation of the employer's actual First Amendment rights, to respect the employee's make-believe "religious liberty interests." Tell me, what is the source for these magical "religious liberty interests?"
Posted by: Brian English | Jul 9, 2013 5:22:42 PM
Title II of the Civil Rights Act of 1964:
"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."
That would be one source.
Posted by: Joe | Jul 9, 2013 7:06:20 PM
“...what is the source for these magical ‘religious liberty interests?’”
Same source as all individual liberty interests: the unalienable rights referred to in the Declaration of Independence (second paragraph) and also referred to by the Ninth Amendment.
Questions: do the religious clauses of the First Amendment CREATE religious liberty interests?
Or do they merely PROTECT religious liberty interests?
Are our rights “God given” or merely created by human laws?
Posted by: sean samis | Jul 10, 2013 10:20:47 AM
"Title II of the Civil Rights Act of 1964:"
So Title VII creates a religious liberty interest in free contraception? Since Title VII is not limited to the employees of public accommodations, doesn't that mean that anyone should be able to walk into any public accommodation and demand their free contraception?
"Same source as all individual liberty interests: the unalienable rights referred to in the Declaration of Independence (second paragraph) and also referred to by the Ninth Amendment."
So the Declaration and the Ninth Amendment create a religious liberty interest in free contraceptives that an employer has to provide? What else does this religious liberty interest force employers to provide?
"Are our rights “God given” or merely created by human laws?"
Our rights are God given, but are recognized and protected through human law.
Posted by: Brian English | Jul 10, 2013 10:50:36 AM
So, Brian English, you agree with me as a general matter -- federal laws like that, e.g., protect religious liberty, but your problem is the application of the idea to "free contraception" and so forth.
Posted by: Joe | Jul 10, 2013 11:30:45 AM
"So, Brian English, you agree with me as a general matter."
Depends on what the law is. A law can either protect or infringe upon a God-given right.
Posted by: Brian English | Jul 10, 2013 11:56:37 AM
There's no liberty interest in being able to work on the Sabbath, but there is a liberty interest in being able to make that choice unconstrained by the religious views of others. The liberty interest in this case is also in being able to make a choice (about contraception) unconstrained by the religious views of others.
Posted by: sean samis | Jul 10, 2013 12:02:48 PM
Take the very law I cited.
The law protects the religious rights of employees in various ways, even though "the state" is directly involved. A Catholic, e.g., cannot be denied employment at McDonalds because the franchise owners "doesn't like them," just as race cannot be a grounds for refusal in that fashion. This arises from civil rights law, not the "First Amendment" as such.
Now, let's say the franchise owner thinks Catholics (or white people) are "devils" or something based on owner's religious based sentiments. Would the franchise owner of McDonalds be able not to hire them? If "yes," it underlines the breadth of the sought after principle.
The matter -- as has been addressed before -- that "public accomodations" are involved would factor in. Also, "for profit" might be a factor. Or a religious charity vs. restaurant. Such things have been dealt with in the past. So, I really will end now.
Posted by: Joe | Jul 10, 2013 12:25:57 PM
ETA: "the state" is NOT direct involved
Posted by: Joe | Jul 10, 2013 12:26:26 PM
Joe, regardless if a corporation is for profit, or non profit, it is not unjust discrimination not to hire, or to fire any person who does not support the mission of your corporation.
Posted by: Nancy | Jul 10, 2013 1:50:47 PM
Unless the mission of the corporation is to oppose contraceptives, your comment is entirely off-topic.
Posted by: sean samis | Jul 10, 2013 2:04:00 PM
"The liberty interest in this case is also in being able to make a choice (about contraception) unconstrained by the religious views of others."
(1) I am aware of no religious group that regards taking contraceptives as an integral part of their belief system; and
(2) Even if you assumed the existence of such a group, the employer is not preventing the employee from taking contraceptives. He is simply refusing to pay for them based on his religious beliefs.
Posted by: Brian English | Jul 10, 2013 4:25:43 PM
"This arises from civil rights law, not the "First Amendment" as such."
But the employer is not taking any actions that would that would subject him to liability under any civil rights law. He is simply refusing to pay for something that conflicts with his religious beliefs based on the protections provided by the Constitution and RFRA.
Posted by: Brian English | Jul 10, 2013 4:29:09 PM
(1) is irrelevant. Religious liberty is not predicated on membership in any “religious group”.
(2) purchase through insurance is the only rational way to pay for health care; the employer has no standing to interfere; if they are involved in providing the health care (which the GOP insists on) then reasonable regulations can require them to participate.
(3) the regulation does not require anyone to take or use contraceptives if they oppose it, it just requires them to not interfere with the choices others make; THAT is the basic idea behind Religious Liberty: you do what you think is right and FACILITATE others making their own choices. We all FACILITATE by not interfering.
Posted by: sean samis | Jul 10, 2013 4:39:10 PM
Sean, unless your mission was to condone the contraception mentality and thus the sexual objectification of the human person, why would you be trying to obstruct my right to run my corporation according to my values and morals to begin with?
Posted by: Nancy | Jul 10, 2013 4:53:14 PM
If RFRA does not protect the religious right to engage in racial discrimination, then it does not protect any right to interfere in an employee's religious choices.
If RFRA DOES protect a right to interfere in an employee's religious choices, then it also PROTECTS the religious right to engage in racial discrimination.
Pick your poison.
Posted by: sean samis | Jul 10, 2013 4:56:07 PM
(1) It is entirely relevant. Something not a part of your religion is not a part of your religious liberty. Are you claiming that everything a person does is part of their religious liberty?
(2) Sure he does, because his religious beliefs are actually being violated.
(3) The only interference here is by the government--in the employer's religious liberty. Should a Catholic who works for Jewish employers be allowed to force them to buy his rosary beads for him? What about a trip to the Vatican?
Posted by: Brian English | Jul 10, 2013 6:11:54 PM
Sean, what poison are we picking when we recognize that it is not unjust discrimination to discriminate between those persons who support our Faith and mission, and those persons who don't support our Faith and mission, when supporting our Faith and mission does not depend on someone's race or ancestry to begin with?
Posted by: Nancy | Jul 10, 2013 7:35:08 PM
There is a "summer rerun" flavor about this. Perhaps, since we all have said this already, we can move on. For instance, the "what religion/contraceptives" thing:
Perhaps, we can move on? I realize I have more "final" comments as there are final destination sequels. But, we have been thru this before.
Posted by: Joe | Jul 10, 2013 10:19:46 PM
Insurance is the only rational way to purchase healthcare? That's an awfully specious assertion. You use your insurance for Tylenol at the grocery store? A months supply of oral contraceptives at Wal-Mart or Target don't cost much more than a bottle of Tylenol.
Posted by: CLS | Jul 11, 2013 11:14:34 AM
(1) remains irrelevant. One need not belong to any religious group to have religious rights.
(2) re: “because his religious beliefs are actually being violated.” But not by himself. Religious Liberty means that YOU get to violate the religious beliefs of OTHERS, but not violate their rights.
(3) employees have rights too, and in this matter the employer is interfering in the employee’s rights, which the State can prevent.
Posted by: sean samis | Jul 12, 2013 8:24:22 AM
Wow, CLS. I’m sure hoping you’re not in charge of my health care. All you can come up with is a bottle of Tylenol?
A month’s supply of oral contraceptives costs about as much as a bottle of Tylenol, but the Tylenol lasts a lot longer than a month; a month’s supply of oral contraceptives costs MUCH MORE than a MONTH’S SUPPLY of Tylenol.
If a woman is on the pill, she needs regular doctor visits to ensure the medicine and dosage is right for her. You have to factor in that cost too, and it’s best paid for by insurance.
(CLS, if you’re burning through a bottle of Tylenol every month, you should see your doctor too! Add that cost to the bottle of pills. And the doctor visit will go on your insurance, no doubt.)
Then of course is the matter that there are many kinds of contraceptives, some require medical procedures to use. Which one is best for any particular person is best determined by a medical examination; there’s lots of insurance implications in those points.
But what really annoys me is the specious assumption that everyone could easily afford that bottle of Tylenol every month. I recall (not so fondly) when I was living on the financial edge with a child; every expense—including a bottle of Tylenol—had to be weighed against children’s shoes and having food better than cheese curls and hot dogs. The persons most affected by insurance availability are the very ones for whom that monthly bill is least affordable.
Posted by: sean samis | Jul 12, 2013 9:35:12 AM
"But what really annoys me is the specious assumption that everyone could easily afford that bottle of Tylenol every month. I recall (not so fondly) when I was living on the financial edge with a child; every expense—including a bottle of Tylenol—had to be weighed against children’s shoes and having food better than cheese curls and hot dogs. The persons most affected by insurance availability are the very ones for whom that monthly bill is least affordable."
Sean, this objection pushes an otherwise reasonable point too far. It is a legitimate question to ask whether certain items ought to be covered by insurance or not. As well, what services (like doctor's visits to an OB-GYN) are covered. Raising the fact that contraception, on the whole, remains a pretty cheap and widely available product, doesn't mean that CLS automatically assumes everyone can afford it. Or that he doesn't really care if they can't. Insurance providers make these kinds of choices all the time, & to cast moral aspersions for engaging in otherwise acceptable line-drawing seems to give away a defensive about the issue I found curious from one usually so sure of his position.
Posted by: Josh DeCuir | Jul 12, 2013 4:43:25 PM
By the way, how would it affect your analysis of the point if you considered that most insurance companies DO offer contraceptive coverage largely because the cost-benefit analysis shows that it reduces the amounts they have to pay to cover child birth related expenses? At the end of the day, the insurance company engages in the precisely the kind of "bottom-line" analysis that you seem to object to CLS engaging in.
I would say the upside to the President's decision to delay implementation of the employer mandate (leaving aside the points Judge McConnell's op-ed raises) is that may push us towards what I think is a positive policy goal: the disastrous link between employment & health insurance whatsoever. Of course, no doubt, Sean, you will object to people being thrown to the wolves if they were responsible for obtaining their own insurance (with appropriate government assistance, to be sure). But it would solve many of these thorny issues, it seems to me.
Posted by: Josh DeCuir | Jul 12, 2013 4:51:52 PM
CLS' comment: "Insurance is the only rational way to purchase healthcare? That's an awfully specious assertion. You use your insurance for Tylenol at the grocery store? A months supply of oral contraceptives at Wal-Mart or Target don't cost much more than a bottle of Tylenol."
Josh DeCuir is correct that this statement is ambiguous, but the dismissive nature ("awfully specious"), misleading factual claim (the real cost of oral contraceptives very well can be $50 for some people, even w/o doctor visits etc.) and past comments on this issue makes sean's sensitivity a venial sin.
If CLS accepts that some people cannot afford Tylenol, the premise is weakened. It would make sense to provide as part of the insurance. Not that an aspirin is what "health care" means generally speaking. Such a dismissive problematic comment is more a concern. It would be useful to address the question expansively.
What other "pretty cheap and widely available product" might we exempt? For instance, eye glasses are pretty cheap too, especially one pair a year. Cheaper than a year supply of Tylenol. But, they are covered. That might be a neutral rule. But, birth control is not really that cheap for many people & price is not the only reason it is added -- it is added in part, again it's useful to think about, as an incentive given the positive preventive health benefits.
CLS is not really "engaging in cost benefit analysis" in that comment in any real fashion. If it was a less dismissive quickie comment, sean might have been less upset about it.
Posted by: Joe | Jul 12, 2013 7:48:05 PM
My comments seem to keep getting eaten in the inter tubes somewhere. I must have a bad internet connection.
I was making a serious point. Namely, contraception is super cheap and widely available. Sean is correct that what is cheap is relative. But, if you really can't afford four dollars per month then you probably qualify for medicaid, Title X, or any number of state based family planning services.
My other point was that Sean's claim that the only 'rational' way to buy healthcare is through insurance is false. Joe's vision care is another good example. On my plan, vision is an add on. I don't add it on because it is cheaper for me to pay for a new pair of classes every so often out of pocket than to pay the extra cost for the coverage.
You are quite right that I am not really engaged in a cost/benefit analysis. Rather, with contraception so cheaply and widely available there is no compelling governmental interest in conscripting conscientious objectors into facilitating access to it. If there is really such a compelling need, PPACA could have used an almost infinite variety of means that would have ensured universal access without stepping on the toes religious objectors. In other words, the mandate is not the least restrictive means.
Posted by: CLS | Jul 13, 2013 12:29:26 PM
I'm sorry, Joe, but you can't BOTH claim that that the pill is covered because it is a really cheap (and effective) means of keeping child-birth costs down AND that it needs to be covered because there are prohibitive cost barriers.
(And for the record, neither my eyeglasses NOR my contacts are covered by under my high deductible plan; I pay for them out of my HSA account).
Posted by: Josh DeCuir | Jul 14, 2013 10:02:24 AM
I will sneak one more comment here.
Contraception is not "super cheap" all the time. For many people, $15-$50 a month is not "super cheap," which doesn't count doctor visits. What is this business of "four dollars a month"? No seriously. Brian English, who strongly disagrees with me, brought up nine dollars. Now it is FOUR? And, the standards for Medicaid, especially since the requirement that states include the expansion of it was struck down, can keep out those on the margins.
The argument around here isn't that "super cheap" contraceptives alone should be kept off. It is that there is a religious liberty concern for employers (those of employees are elided past, sean, me et. al. repeatedly citing them) requires not mandating it for certain employers. Is "super cheap" was the test, abortion would often be covered, costs possibly over $500, at times $1000.
If you wish to seriously make a cost/benefit analysis, I repeat, let's not be selective about it when talking how 'conscripting' should work. But, that would be very complicated, since ABORTION might be covered, contraceptives in various cases while other types of medical care ALSO would not be covered for religious reasons in various cases, since other employers will find some other relatively cheap procedure or drug or whatever against their faith.
Josh DeCuir, I noted that it isn't "really cheap" all the time. "I'm sorry," didn't I already say there were MULTIPLE reasons why the mandate is there? For some people, yes, it is important, since they don't find $50 or something "really cheap." For others, it might be something they can afford, but it's an incentive to use preventive health care. Overall, it is cost effective, so there's that positive for insurance overall.
This is my concern -- selective responses. Okay, so your plan does not cover eyeglasses. However, if it did, and many plans do, it would make sense for various reasons. It could be cost effective or overall promoting health in some cases, since the alternative might be people will decide not to get new pairs and strain their eyes or the like, leading to health issues that can be costly. For some, a new pair will not be "super cheap," especially if they don't have a cheap prescription. And, it might be a means to promote something else, like reading or whatever.
Overall, contraception is not "so cheap" for many and the mandate here is for that -- use of one's own labor to provide it as part of your insurance package. That is the only way mandated for "facilitation" -- it need not be handed out on campus or at the nurse's station. It also is not as broadly used by all people who could, as health studies have shown, use it for productive health reasons. So, the mandate is an incentive there. It also has gender equality benefits. Again, something covered in detail by many.
There is also an "infinite" number of possible health items that religious objectors might find troublesome. But, there is focus on a select few, which repeatedly are not "cheap" and in fact in various cases not even that "widely available" in some cases. This would be a complicated subject to weigh all the factors, if this is seriously covered, including realizing what "religious liberty" fully entails.
Posted by: Joe | Jul 14, 2013 12:58:10 PM
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