Juridics: Individual Mandate: Niceties of the interpretation of the Commerce Clause before the Supreme Court

The American Spectator (December 29, 2k11)
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The Bell Tolls for Obamacare

By PETER FERRARA on 11.23.11 @ 6:08AM

The key to the Supreme Court's upcoming ruling will be clear recognition of constitutional alternatives to Obamacare.

On November 14, the Supreme Court granted the Writ of Certiorari to hear the appeal of the cases testing the constitutionality of Obamacare. The resulting decision will mark an historic watershed not only in the restoration of constitutional jurisprudence, but in fundamental, market reform of the entire entitlement state.

Historic Decision BrewingI write serving as the General Counsel of the American Civil Rights Union (ACRU), as one of several current positions. The ACRU was started by former top Reagan aide Robert Carleson, with former Attorney General Ed Meese as Chairman of the Advisory Board, along with other former Reagan Justice Department officials, besides myself as a former Reagan White House staffer.

In my capacity for the ACRU, I wrote and filed amicus curiae briefs on behalf of the ACRU in both the district court and the circuit court in the challenge by 26 states in the 11th Circuit that resulted in an order striking down the entire Obamacare law. I also wrote and filed ACRU amicus curiae briefs in the challenge by Virginia Attorney General Ken Cuccinelli in both the district court and the circuit in the 4^th Circuit. The district court found the individual mandate unconstitutional, while the circuit court ruled that Virginia had no right to bring the case (two Obama appointed judges on the three-judge panel).

I am predicting that the Supreme Court will strike down the entire Obamacare law on a 5-4 ruling. That starts with the individual mandate, which the Court will find unconstitutional because it has reiterated several times in recent cases that it will enforce some limit on the Commerce Clause as justification for federal regulation, reserving the role of police power to regulate for the general public good to the states. Virtually all the judges in all the lower court cases concluded that there was no precedent anywhere in U.S. history upholding a law requiring citizens to purchase a good or service. Not participating in interstate commerce by choosing not to buy a product or service leaves no basis for regulation to compel such participation under the Commerce Clause power to regulate interstate commerce.

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Juridics: USA Labor Law: Can states or feds contain 'freedom of religion' clause -- First Amendment

"Be Distinctive or Risk Losing Religious Freedom" -- Dr Stanley Carlson-Thies (June 14,2k11)
IRFA - Institutional Religious Freedom Alliance - eNews for Faith-Based Organizations (this email newsletter is edited by Dr Carlson for IRFA).  The version of the text, as presented below, is a semiotic enrichment of digital text without altering a single word of the original as published.

Another Attempt to Tinker with the Federal RFRA ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Believe it or not, in the guise of promoting the national defense an effort is currently underway in the Senate to weaken the Religious Freedom Restoration Act.  Tucked away in S. 981, the Senate's bill to authorize the Defense Department's budget, is a proposal to remove from RFRA's oversight the military's regulations concerning "wearing of items of religious apparel with the uniform."  Two efforts were made in the last Congress to restrict the scope of RFRA's coverage--once in a bill dealing with fraudulent funeral home practices and once in a bill that would have added new restrictions to religious hiring by faith-based groups that receive federal drug treatment funds.  Neither bill went anywhere. RFRA was signed into law in 1993 by President Clinton, after being adopted nearly unanimously by Congress.  It is Congress' response to the US Supreme Court's 1990 decision in Employment Division v. Smith, in which the justices held that government rules can restrict religious exercise if the government is legislating neutrally rather than targeting religion.  RFRA restores the previous standard.  It exempts religious institutions and people from complying with a generally applicable law that would "substantially burden" their exercise of religion, unless the government can show that it has a "compelling interest" in requiring their compliance and that it has chosen the "least restrictive means" of furthering that vital interest.  Note that there is no automatic exemption, no general free pass for religion.  And note that if there really is a vital governmental interest at stake, and the government has done its best to accommodate religious exercise, then it can impose even a "substantial" burden on religious people and organizations. Of course, it is easier for the government not to have to accommodate religion more than it finds convenient, and it is more pleasing to government officials (just like all of us) not to be held to account for difficult decisions.  But freedom of religious exercise is a high value--a constitutional value.  And RFRA is our premier protection for religious exercise.  It is vital to keep RFRA intact, because support for the principle of religious freedom is waning (in part as a consequence of growing support for sexual freedoms).  One successful effort to restrict the scope of RFRA will just encourage a flood of additional proposals, removing this religious freedom protection where it is most needed.  Hat tip to Steve McFarland, World Vision. [Stan Carlson's text, again ... ]

Catholic Charities Agencies Take Illinois Government to Court ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ On behalf of the Catholic Charities agencies in three dioceses (Springfield, Peoria, and Joliet), the Thomas More Society filed a lawsuit last week, seeking to stop the state of Illinois from requiring them to violate the Catholic Church's convictions about families and sexuality as a condition of contracting with the state to provide adoption and foster care services.  In late May, in order to avoid a conflict with the government, Catholic Charities in Rockford [Illinois] announced that it would not renew its contracts with the state.  Some other faith-based agencies are awaiting the new contracts, due before the end of the month, to see what the specific requirements will be. The difficulties for the faith-based agencies started in March, after the governor signed into law a civil unions bill that requires partners in a civil union to be treated the same as married spouses.  Government officials, newspaper reporters, and activists started quizzing faith-based agencies about whether they would accept gay individuals or couples as suitable families for placing children.  Multiple other agencies already serve the gay community.  In a March 8 letter, the Illinois Attorney General demanded that Catholic Charities of Springfield prove that it does not engage in illegal discrimination when it recruits families and places children. The lawsuit says that the Illinois Human Rights Act specifically excludes "sectarian" adoption agencies from its requirement that no "public accommodation" can discriminate on the basis of sexual orientation and marital status.  It also points to statements by the sponsors of the new civil unions law that, despite some ambiguity in the law's text, the law is not intended to "interfere with or regulate the religious practice of any religious body."  And the lawsuit claims protection for the faith-based practices of the Catholic Charities agencies under the Illinois Religious Freedom Restoration Act.  Like the federal RFRA, the state RFRA is designed to restore the strong protection for religious freedom that existed before the US Supreme Court's decision in Employment Division v. Smith (see story above).  The Illinois RFRA requires the government to choose the "least restrictive means" of furthering its "compelling interests" when it adopts rules that limit the free exercise of religion. However, as the lawsuit points out, forcing faith-based agencies to participate in gay adoptions and foster-care placements can hardly be the state's "least restrictive means" of ensuring that gay persons can adopt or take care of foster children given the many other agencies in the state that serve just such persons.  The Illinois faith-based agencies that seek to recruit and work with married couples and with single people who adhere to biblical sexual standards are hoping that, this fall, the legislature will put into the law and regulations that apply to their services explicit language protecting their faith-based policies (efforts earlier this year failed).  The lawsuit is an effort to forestall any adverse action by the state before the legislature can fashion an appropriate remedy.

Juridics: USA: Supreme Court ban partial-birth abortions 5-4

A reporter for Washington Times [WaTi], Stephen Dinan, gives a succinct yet detailed report on the Supreme Court of the USA [SCOTUS] decision yesterday ending partial-birth abortions practised by some abortionists and defended apparently by the entire elite of pro-abortion organizations and the medical profession involved.

The Supreme Court yesterday upheld a federal law prohibiting partial-birth abortion, marking the first time a specific abortion procedure has been successfully outlawed.

The 5-4 ruling, which reversed the justices' decision in a Nebraska case seven years ago, is the first major shift since Justice Sandra Day O'Connor retired from the court and was replaced by Justice Samuel A. Alito Jr.

Yesterday he provided the key fifth vote, joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, who wrote the majority opinion ruling that the government can ban a particular medical procedure if there are other options available and if the state has a reason to be concerned.

"When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the state is altogether barred from imposing reasonable regulations," Justice Kennedy wrote. "The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives."

Justice Ruth Bader Ginsburg, writing for the minority, said the ruling was "an effort to chip away at a right declared again and again by this court." She was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

"Today's decision is alarming," Justice Ginsburg wrote. "It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

.In another WaTi article, Amy Fagan reports how the SCOTUS "Ruling opens abortion debate for '08" (Apr19,2k7):

The Supreme Court decision upholding a federal ban on partial-birth abortion predictably pleased the Republican presidential contenders and disappointed Democratic candidates.

To the Republicans it was "a step forward" and "correct"; to the Democrats it was "alarming" and a "dramatic departure." But partisans on both sides agreed the decision is the beginning, not the end, of the abortion debate in the 2008 campaign.

"This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman's right to choose and recognized the importance of women's health," said Sen. Hillary Rodham Clinton, New York Democrat and the perceived front-runner for Democrats' presidential nomination.

She had "warned of precisely this erosion of our constitutional rights" when she voted against both of President Bush's Supreme Court nominees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

The Republicans, all of whom have said they would nominate judges like Justices Alito and Roberts, called the decision a victory for pro-life advocates.

So, the whole victory is politicized immediately. However, there's a pre-political dimension which has to do with carrying your baby to term, or getting your abortion much earlier in your pregnancy so that your kid isn't half-born when you have it removed, instead of hacked to pieces. There's an ethical relationship at stake here between the mother and her offspring, that she must deal with earlier than a last-minute infanticide. The Supreme Court decided to ban only a narrow segment of abortion cases, abortions obtained by particularly irresponsible mothers and abortionist doctors. The rest of the industry remains intact--lobbyists, govt funding, Planned Parenthood, and political opportunists (speaking in the name of an assertedly absolute r+t of a woman to an abortion whenever and however she wants it or is compelled by others to seek it), like Hillary Clinton.

Whether all the Justices voting against this kind of abortion would find legislation constitutional that outlawed all abortions of every kind and for whatever reason they otherwise may take place (rape, incest, death of the mother if baby brawt to term, etc) remains to be seen. I would never support legislation that outlawed all abortions for any reason whatseover--which is what many of the Republicans and lobbyists of the fanatical r+twing want. "Pro-life" has a lot of injustice up its own sleeve.

But, thank God for the wisdom of this SCOTUS with Chief Justice Roberts and Justice Alito on board, and for the "swing Justice" Kennedy too. And let the partisan absolutist politicians rant and rave and foam at the mouth, but don't let them determine the law.