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Hobby Lobby v. The Administrative State

As you undoubtedly know by now, the Supreme Court ruled last Monday in favor of Hobby Lobby et al. in their case against the federal government.  And depending on where one falls on the issue, the ruling was either the greatest affront to women in the history of mankind and just another step down the road to usurpation of our democracy by “Christianist” theocrats, or, the bravest and most honorable defense of religious liberty in the history of the Western world.   On the one side, the actor John Fugelsang declared that the ruling “proves once again that Scalia law is a lot like Sharia law,” while NARAL warned that the ruling proved that “discrimination against women is not discrimination.”  And on the other side, the Senator and presumptive presidential candidate Rand Paul proclaimed that now “Religious liberty will remain intact and all Americans can stay true to their faith without fear of big government intervention or punishment.”

It is hardly surprising that the two sides in this debate would choose to frame the ruling in these terms.  The Left, in general, sees everything as a question of sex and “women’s health.”  And the Right, by contrast, sees many of the same issues in terms of religion, religious values, and the right to practice one’s religion without interference by the state.  We think it goes without saying which of the two sides has the better argument, but we don’t wish to join that argument today for a couple of reasons.

First, you, gentle reader, are likely to see a great deal of commentary over the next several weeks – perhaps some on this site – addressing the Hobby Lobby ruling and its impact on the culture wars from people who are far better versed in the intricacies of the moral foundations and explanations than are we.  Better, we think, to let those more qualified make the case.

Second, and more to the point, we tend to see this ruling in something of a different light, one that we believe is equally important, if somewhat less morally instructive in nature.

You see, the ruling handed down by the Supreme Court was not, contrary to popular belief, based on the Constitutional guarantee to the “free exercise” of religion.  This was not a First Amendment case.  Rather, it was a case brought under the Religious Freedom Restoration Act of 1993, which is to say that the justices were ruling not on Constitutional law, but on statutory law.

What that means is that when the Court struck down this portion of the contraception mandate, it reasserted the supremacy of legislative law over regulatory law.  In other words, it dealt a blow to the administrative state.

At this point, no one can say just how serious this blow against the administrative state will prove to be, but there can be little doubt that it is important.  For years, decades even, the administrative state has been ascending.  And the courts have played a significant role in the ascendance, expanding the law to accommodate regulatory demands never anticipated by the laws or their authors.  On Monday, the Supreme Court provided a small glimmer of hope this ascendance will not be allowed to continue indefinitely; that there are, indeed, limits to the latitude that will be granted to the administrative state.

In truth, this was the second Monday in a row that the Court offered such hope.  On June 23, when the Court ruled in favor of the EPA in Environmental Protection Agency v. EME Homer City Generation, it also issued the Obama administration a stern warning with respect to future plans to regulate carbon dioxide as part of its plan to control “climate change.”  “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms,” Justice Scalia wrote for the majority.  “It would be patently unreasonable — not to say outrageous — for E.P.A. to insist on seizing expansive power that it admits the statute is not designed to grant.”

This matters a great deal, particularly with respect to healthcare and the emerging Affordable Care Act regulatory structure.  In an April 10 essay on this blog, we observed the following:

Note as well that regulatory interpretations by Obama officials are at the very heart of the ACA.  As Philip Klein wrote in the American Spectator roughly four years ago:

There are more than 2,500 references to the secretary of HHS in the health care law (in most cases she’s simply mentioned as “the Secretary”).  A further breakdown finds that there are more than 700 instances in which the Secretary is instructed that she “shall” do something, and more than 200 cases in which she “may” take some form of regulatory action if she chooses.  On 139 occasions, the law mentions decisions that the “Secretary determines.”  At times, the frequency of these mentions reaches comic heights.  For instance, one section of the law reads: “Each person to whom the Secretary provided information under subsection (d) shall report to the Secretary in such manner as the Secretary determines appropriate.”

With its ruling in the Hobby Lobby case, the Supreme Court has put the Obama Administration on notice:  Be careful, and do NOT overstep your bounds.

This is an important and very positive development – and not just for those who see the need to protect religious liberty from the encroachment of an overzealous government.  The administrative state has been rebuked.  The idea that this is a nation with a government that is of the people, by the people, and for the people has been strengthened, if only nominally.

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