Obamacare

Will the Supreme Court Save Obamacare Again? Keep Your Eyes on Kennedy

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When Chief Justice John Roberts cast the crucial vote in 2012 to uphold the Patient Protection and Affordable Care Act, he justified his decision as an act of judicial deference to the elected branches of government. Judging by today's oral arguments in Sebelius v. Hobby Lobby Stores Inc., which centered on Obamacare's mandate requiring most employers to provide birth control coverage to their employees, the chief justice is unlikely to repeat that deferential performance.

According to the Obama administration, for-profit corporations should never be permitted to raise religious objections to federal regulations. That includes Hobby Lobby, an arts-and-crafts retailer owned and operated by a family of evangelical Christians who object to providing access to four methods of contraception they deem equivalent to abortion.

Yet when Solicitor General Donald Verrilli attempted to make his case this morning, Roberts wasted little time in attacking the government's blanket standard. "Every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations," Robertts told Verrilli. "Does the government have a position on whether corporations have a race?" Roberts asked. Verrilli conceded that "corporations can bring those claims." So why should we view this case differently, Roberts' questioning plainly asked.

Liberal Justice Elena Kagan appeared to agree that the government's stance on for-profit corporations lacked a firm legal footing. You may be able to argue that a specific entity such as Hobby Lobby should not prevail on the merits, Kagan told Verrilli, but "I'm not sure I understand it as a threshold claim that this—that the claim is not recognizable at all."

To make matters worse for the government, Justice Stephen Breyer, another member of the Court's liberal wing, also seemed dubious. Building on a hypothetical scenario posed by Justice Samuel Alito, who asked about the religious liberties of "kosher and halal" slaughterhouse corporations, Breyer added, "take five Jewish or Muslim butchers, and what you're saying to them is if they choose to work under the corporate form," they have to abandon the Free Exercise Clause as a legal tool. "Looked at that way," Breyer said, "I don't think it matters whether they call themselves a corporation or whether they call themselves individuals."

But the justices appeared more closely divided along ideological lines when it came to the second part of the case, which asks whether the contraceptive mandate violates federal law by placing a substantial burden on Hobby Lobby's exercise of religion. Here the deciding vote is likely in the hands of Justice Anthony Kennedy, whose own questioning this morning revealed a certain degree of sympathy for each side. "The employee may not agree with the religious —religious beliefs of the employer," Kennedy observed at one point. "Does the religious beliefs just trump? Is that the way it works?"

Yet later in the proceedings Kennedy appeared equally concerned with the religious conscience of the employer. "Under your view," Kennedy told the solicitor general, a for-profit corporation "could be forced to pay for abortions…your reasoning would permit that."

If Kennedy holds to that latter view of the case, the contraceptive mandate may be in trouble.

A ruling in Sebelius v. Hobby Lobby is expected by June.

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  1. “Every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” Robertts told Verrilli. “Does the government have a position on whether corporations have a race?” Roberts asked. Verrilli conceded that “corporations can bring those claims.”

    I know I say a lot of bad things about Justice Penaltax, but I have to admit that is a devastating argument. If corporations are not extensions of their owners, hard to see how they could have standing to sue in racial discrimination cases.

    1. Yeah, that one burned.

    2. What matters to the ideologues is the end, not the unconstitutional means. Look at the bill of rights as an example of government infringement where there is no legal authority to infringe.
      FYTW

  2. “The employee may not agree with the religious ?religious beliefs of the employer,” Kennedy observed at one point. “Does the religious beliefs just trump? Is that the way it works?”

    There must be a lot of context on this quote that isn’t coming through because how the employee/employer contract this has any bearing on federal mandate to an employer is rather out of left field. Much like his racial discrimination argument above, the employee disagrees with the corps. anti-discrimination policy… so what?

    1. There is a world where such legal dilemmas don’t trouble supreme court justices.

      It is a world where supreme court justices don’t allow the government to impose a Health Insurance Mandates on its citizens in the first place.

    2. The key distinction I believe is missing from this argument is which side is trying to force their view on the other.

      The employer not buying a plan that does not provide specific forms of birth control does not prevent the employees from obtaining those services on their own. Those who claim their healthcare is none of their employers business still seek to force the employer to pay for it.

  3. What we’re going to get is: Closely held corporations may be entitled to a religious exemption from the employer mandate. As in, they will not have to pay a fine if they choose not to offer insurance.

  4. I’m surprised more corporations don’t just end insurance, take the savings from said medical insurance, deduct the penalty, and then pay the difference across the board as a pay increase to their employees. Lots less hassles arguing with your tpa, administering and explaining the plan etc. And each raise should be accompanied by a letter explaining to the employee that the raise would have been $XX higher except that the Democrat Party took it away.

    1. It is easy to tell others to rat on the Mob.

      What sort of example would Team Blue make of the first few companies to try that?

    2. By one figure, Hobby Lobby’s fines would be about $500 million a year. Not sure they come out ahead.

      1. I had read that the $500 million would be the fines if they don’t pay for the contraceptive medical things. If they just canceled their insurance and paid the penalty for not having insurance for their employees it was around $25-$30 million.

  5. my roomate’s sister makes $64 hourly on the laptop . She has been without work for six months but last month her payment was $21522 just working on the laptop for a few hours. original site…….
    http://www.Works23.us

    1. Yeah but what does she think about the contraceptive mandate?

    2. I am very interested in your product/service. If possible, please provide me with an email address to which I can send you my bank account and credit card information so that we can get this process started.

  6. It’s the large corporations, with the administrative wherewithal, who lobby for the health insurance tax break. Their systems are already set up. Another competitive barrier to entry for the little guy. And the politicians who accept their contributions just eat it up.

  7. whether the contraceptive mandate violates federal law by placing a substantial burden on Hobby Lobby’s exercise of religion.

    Funny, my copy of the First Amendment says “Congress shall make no law”, not “Congress shall make no law that places a substantial burden“. Weird, huh?

    1. Are you some kind of literalist?

  8. “The employee may not agree with the religious ?religious beliefs of the employer,” Kennedy observed at one point. “Does the religious beliefs just trump? Is that the way it works?”

    Count on Kennedy to not understand the difference between a statute and corporate policy. I dunno if he is genuinely that brainwashed/stupid, or if he is just faking it for some reason.

  9. Yeah, they were saying “watch out for Kennedy” the last time the ACA went to the court. Guess who sold us out I mean took a more nuanced view? The chief justice.

  10. It appears that the three chicks are going to vote as a bloc against this challenge. To the extent you can extrapolate from oral argument, but I think this is a safe bet.

    http://time.com/#37055/supreme…..-coverage/

    I particularly enjoy the horror expressed at the notion that different companies might offer different benefits.

    1. It appears that the three chicks are going to vote as a bloc against this challenge. To the extent you can extrapolate from oral argument, but I think this is a safe bet.

      That was pretty well a foregone conclusion before the case reached appellate court.

      It’s hard to imagine how this challenge is successful given the last century of precedent subjecting businesses to the moral whims of the legislature. Even if it is successful all it’s going to do is open the door to more and more businesses trying to claim religious exemptions from mandates that are blatantly unconstitutional in the first place and the court becoming the arbitrator of “legitimate religion”.

      1. I think this is a loser. Assuming the three chicks vote for the mandate, I don’t see 5 of the remaining 6 voting it down.

        And, naturally, it remains a travesty that Kagan is allowed to hear any case on ObamaCare, given that she was advising the President on it while she was Solicitor General.

  11. When Chief Justice John Roberts cast the crucial vote in 2012 to uphold the Patient Protection and Affordable Care Act, he justified his decision as an act of judicial deference to the elected branches of government.

    In fact, he may instead have been under threat of who knows what, from any of several three letter agencies that surely had all his phone and email traffic in hand, plus whatever else they could scoop up.

    Is it not sad that we can no longer dismiss this kind of possibility out of hand?

    Whatever else may happen, don’t expect the Supreme Court to save us from ObamaCare Hell. They’re going to rubber stamp it one way or another.

    1. I doubt that the spooks give a shit about obamacare. They’re more likely to break out the dossiers when the supremes rule on any 4th or 5th-amendment case.

      -jcr

      1. They’d care if somebody way high up told them to care.

        Seems like I recall that kind of thing happening a time or two before in history.

        1. Why would Goldman Sachs care?

          -jcr

  12. “Will the Supreme Court Save Obamacare Again? Keep Your Eyes on Kennedy”

    Depends on who has dirt on which “judge” involved with the case…..and who is wielding the hammer (nsa,fbi,cia)

  13. If hobby- lobby is allowed to not pay for birth control,
    will i still have to pay for it? considering i’m a 49yo male
    and while i’m asking can i skip paying for mammograms and pap smears?

  14. I’ll say it again: The point of the 1st Amendment’s prohibition of religious establishment by the Fedl govt, is precisely to prevent socialism or authoritarianism of the type represented by the Obama healthcare law. And it’s astonishing that our chief justice still knows so little history that he believes the govt can levy taxes discriminately.

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