Comments on Thoughts on the Big and Little Mandate TypePad2013-07-04T12:49:26ZRick Garnetthttps://mirrorofjustice.blogs.com/mirrorofjustice/tag:typepad.com,2003:https://mirrorofjustice.blogs.com/mirrorofjustice/2013/07/thoughts-on-the-big-and-little-mandate-/comments/atom.xml/CLS commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e20191041cc5c6970c2013-07-06T17:53:58Z2013-07-06T17:53:58ZCLSAs an interesting aside, the Pittsburgh Archdiocese is suing HHS for allegedly stonewalling its FOIA requests: http://blogs.spjnetwork.org/foi/2013/07/03/pittsburgh-catholic-diocese-sues-feds-for-patently-uncooperative-response-to-foia-request/<p>As an interesting aside, the Pittsburgh Archdiocese is suing HHS for allegedly stonewalling its FOIA requests: <a href="http://blogs.spjnetwork.org/foi/2013/07/03/pittsburgh-catholic-diocese-sues-feds-for-patently-uncooperative-response-to-foia-request/" rel="nofollow">http://blogs.spjnetwork.org/foi/2013/07/03/pittsburgh-catholic-diocese-sues-feds-for-patently-uncooperative-response-to-foia-request/</a></p>Matt Bowman commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e20192abe22243970d2013-07-05T18:14:49Z2013-07-05T18:14:49ZMatt Bowman"it will depend on a range of atmospheric assessments, and those assessments might relate to what the government does with...<p>"it will depend on a range of atmospheric assessments, and those assessments might relate to what the government does with and how it treats distinct, but related, features of the general statutory scheme"</p>
<p>I think that's right. Compare to O Centro Espirita--nothing like this unfettered bureautic discretion in deciding what the rules are and who must follow them was at work in how the government deals with Schedule I narcotics. Yet a singular, comparatively small exemption, for a different substance than the halucinogenic tea at issue (which itself had no exemptions) gutted the government's assertion of a compelling interest against the RFRA exemption in that case. </p>
<p>That court unanimously (and mockingly) refused to accede to the government's (and some commenters') "slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." But Obamacare bureaucrats don't even have the internal consistency to say "no exceptions"--they're saying we can and do operate this statute however and whenever we want, statutory language notwithstanding, but we still give no quarter to RFRA claimants. </p>
<p>And it is worth noting that basically the same Supreme Court just declared in Fisher that the government can't rely on deference to satisfy the compelling interest test, particularly in the least restrictive means component. </p>Marc DeGirolami commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e20192abe203cd970d2013-07-05T17:28:26Z2013-07-05T17:28:26ZMarc DeGirolamiJoe, when I said "that may all be true," I meant to assume that the specific statements about the Administration's...<p>Joe, when I said "that may all be true," I meant to assume that the specific statements about the Administration's reasons for delay that you advance in your second comment are true. Nothing more than that. </p>Joe commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e201901e22c223970b2013-07-05T16:50:52Z2013-07-05T16:50:52ZJoehttp://joejp.blogspot.comIf all that might be true, I would like people other than people like me or sean or David to...<p>If all that might be true, I would like people other than people like me or sean or David to admit that this is not just about "religious liberty," but a specific category that for selective religious motivated reasons is being targeted. Other than one contributor arguing that abortion (which here applies to something the average "pro-life" person might not even think of as abortion) is different -- and even there, he referenced a POLICY move in that direction, not necessarily a 1A line -- this hasn't been done. This has to be considered when weighing the law, no?</p>
<p>If the "economic and administrative inconvenience" concerns were as you hypothesize applied long term, it could be different. So, if, e.g., a facial hair ban applies to religious practice, but for "convenience," a general exception was applied for medical conditions (Judge Alito while on the 3Cir., I believe, flagged something like this), it might be a problem for RFRA reasons. </p>
<p>But, as with abortion/Plan B, now we are stretching the principle so it applies to shorter delays in place with the overall goal of long term success. Delays that were evenhanded in the sense that -- for the "compelling" interest of advancing the overall ends of a law in place to protect health for all in a more equitable fashion while taking into consideration other interests (including 1A), there was a year grace period. Grandfathering is cited on one hand, but on the other, over and over again comments skip over (while I'm sure totally neutral references to "Obama poll numbers" are made) this while criticizing the Administration's alleged lack of respect for religious interests. </p>
<p>Finally, reference is made to "many people" who might not "like" that things are being weighed in favor of the religious claimant. I'm quite concerned for religious claimants. RFRA is not in place however merely for those against the contraceptive mandate. It is in place for everyone's religious liberty. I think the arguments here selectively burden the religious liberty of some. If we are going to selectively focus on delays in place for the purpose of the long term success of a program that advances religious liberty of all, it's problematic.</p>Marc DeGirolami commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e20192abe1c9e7970d2013-07-05T16:00:15Z2013-07-05T16:00:15ZMarc DeGirolamiJoe, that may all be true. But the trouble is in pinning down what makes an interest "compelling." Like it...<p>Joe, that may all be true. But the trouble is in pinning down what makes an interest "compelling." Like it or not (and I understand that many people today really don't like it), RFRA weights the inquiry in favor of the religious claimant. A government interest has to be extremely important to outweigh a substantial burden (assuming such a burden exists) on religious exercise. Delay in the enforcement of a provision for the sake of, as you say, "eas[ing] things along"--that is to say, to accommodate economic and administrative inconvenience--may compromise the extent to which a government interest is seen as truly compelling.</p>
<p>Just as a thought experiment, it may be helpful to imagine that the delay ends up being not one year, but two years, or five, or ten. The greater the delay, the less powerful the claim becomes that the interest at stake is compelling. I grant that we are not yet facing delays of this kind. But it seems to me that the issue of delay--as well as the reasons for delay--can affect the assessment of whether an interest is truly compelling (if only because the standard for determining that question is...flexible).</p>Joe commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e20192abe1c2c8970d2013-07-05T15:49:37Z2013-07-05T15:49:37ZJoehttp://joejp.blogspot.comThe Administration is delaying the enforcement with the goal of better application in the long term. The desire here is...<p>The Administration is delaying the enforcement with the goal of better application in the long term. The desire here is NON-ENFORCEMENT by certain employers. The Administration and the law itself already has done the former in regard to the contraceptive mandate -- an extra year was provided to ease things along. </p>
<p>The Administration is using a similar delay, here more controversially, to better put in place the employment mandate overall. The "compelling interest" in the end is a law that is in presence for the long haul. Moving past the details, the first comment including comments about "poll numbers" (the concern here is health, as the independent health analysis behind the contraceptive mandate showed) is the bottom line of the opposition here. Long term they want it gone. Quite different.</p>Joe commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e201910418989f970c2013-07-05T15:40:20Z2013-07-05T15:40:20ZJoehttp://joejp.blogspot.com"grandfathered plans, encompassing tens of millions of people" The religious liberty argument -- unless it's pretextual -- would potentially encompass...<p>"grandfathered plans, encompassing tens of millions of people"</p>
<p>The religious liberty argument -- unless it's pretextual -- would potentially encompass a lot more than tens of millions, since the religious liberty argument applies to any employer who raises a religious claim against ANY thing that is required to be covered. Again modern psychiatry for religious reasons? Certain types of counseling that might "advance" homosexuality? Something that might interfere with God's plan involving transexual babies? Potential coverage.</p>
<p>"abortifacient contraceptive sterilizing mandate"</p>
<p>The concern repeatedly is about the nature of the exception here. Religious liberty claims are raised, but this is repeatedly the real concern (to be clear, not for everyone). So, this specific thing, including what even many against abortion do not consider abortion (the factual nature of the question was noted by the dissent in the Hobby Lobby suit too) in various cases, is what repeatedly seems to be the real issue. Why don't we honestly say so then?</p>
<p>If Plan B is going to count, again, any number of health related things can raise questions here. Ditto the concern about "sterilization." So, employers, not employees using their own compensation, will decide loads of basic medical decisions. If we are going to be concerned about things, why not this? The net result will be -- I already have seen it here and elsewhere -- some religious beliefs will be demeaned ("what religious liberty? no one has a religious concern about this?!") in favor of others. </p>Marc DeGirolami commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e2019104188f4f970c2013-07-05T15:26:49Z2013-07-05T15:26:49ZMarc DeGirolamiRight, this is the sort of argument I was envisioning. Because the compelling interest inquiry is ineffably qualitative in this...<p>Right, this is the sort of argument I was envisioning. Because the compelling interest inquiry is ineffably qualitative in this way, it will depend on a range of atmospheric assessments, and those assessments might relate to what the government does with and how it treats distinct, but related, features of the general statutory scheme. If it looks like the government is assuming greater discretion about when and how to enforce a particular primary obligation (the big mandate) which, if and when enforced, will itself trigger an additional subsidiary obligation (the little mandate), then the importance of the subsidiary obligation seems in some way to depend on decisions made with respect to the primary obligation.</p>Matt Bowman commented on 'Thoughts on the Big and Little Mandate 'tag:typepad.com,2003:6a00d834515a9a69e201901e227e15970b2013-07-05T15:09:41Z2013-07-05T15:09:41ZMatt BowmanAt minimum there's a parallel here: the government has prioritized a variety of things higher than the preventive services mandate....<p>At minimum there's a parallel here: the government has prioritized a variety of things higher than the preventive services mandate. For example, the statute itself never says abortifacients or contraception need be preventive. Congress didn't care enough about it to even specify whether they are included or not. The administration admits that it has statutory discretion to offer a total religious exemption if it wants to, and it continually tweaks who is in, and who is out, and who is "accommodated." But it still doesn't follow RFRA and exempt all objectors. Then the statute says grandfathered plans, encompassing tens of millions of people, still have to comply with a variety of Obamacare requirements (like covering dependents up to age 26). But not the preventive services mandate--that one's not important enough to drive home in grandfathered plans. Now we see the bureaucracy scaling back on Obamacare implementation in a variety of ways that place administrative, financial, and plainly political motives over and above the substantive requirements of the law, including by removing one of the preventive mandate incentives. All this amounts to the impossibility of calling the abortifacient contraceptive sterilizing mandate an interest "of the highest order." Statutorily and bureaucratically, there are lots of things given a higher order. This is a second class mandate any way you look at it, except politically (and government has no compelling interest in preserving the president's poll numbers).</p>