My friend Mark Barrett, a lawyer with an apparently amazing capacity to read and absorb legal decisions, writes with this interesting quote from Justice Ginsburg’s concurring opinion (page 29):
A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.
Update: Speaking before his remarks at the symposium on Socially Responsible Investing we sponsored this evening with the Catholic Finance Association, William Mumma, the head of the Beckett Fund for Religious Liberty, brought up Justice Ginsburg’s comment and said that he thought this meant that the legal challenges to the individual mandate would succeed. I wasn’t taking notes and he didn’t say much about it, but that was the gist.
June 28th, 2012 | 5:23 pm
Well, it might give some hope to those of us opposed to the HHS mandate, but I fear it will depend on how one defines “free exercise of religion” , or even “religion”. Those terms might no longer mean what they did.
June 28th, 2012 | 9:44 pm
[...] Ginsberg on the Mandate and (or versus) the Free Exercise of Religion – David Mills, First Things/First Thoughts [...]
June 28th, 2012 | 10:43 pm
This “interesting quote” is the standard list of protected constitutional rights that is hauled out whenever one is explaining that a constitutionally permissible exercise of a Congressional power is not unlimited. Such laws still have to comply with other portions of the constitution, such as the Bill of Rights.
So, for instance a law might be a proper use of the Commerce Clause powers in Article I of the Constitution, but still be unconstitutional if it violates some other limitation imposed on Congress by the Bill of Rights. Her list of specific protections get used almost every time the Court makes this point and they make this point almost every time they are discussing the proper scope of Congressional power. I don’t think it’s particularly significant as somehow suggesting that religious liberty concerns are likely to be vindicated in a future case.
Particularly because of Justice Ginsburg’s central focus on women’s issues, I find it very hard to believe that she’s meaning to suggest how she would view the constitutionality of the contraceptive coverage mandate.
June 29th, 2012 | 1:40 pm
Justice Ginsberg said it would be unconstitutional if it “impermissibly” infringed. But what if it infringes permissibly? Then it would be constitutional, by her lights.
June 29th, 2012 | 2:09 pm
[...] [...]
July 2nd, 2012 | 4:36 pm
Note that the quoted passage comes from Ginsburg’s discussion of the commerce clause and the limits of Congress’s powers thereunder. But under the controlling opinion, the mandate is not a mandate under the commerce clause, it is a tax. As the Chief notes, “the breadth of Congress’s power to tax is greater than its power to regulate commerce” (p.43) and “gives the Federal Government considerable influence even in areas where it cannot directly regulate” (p.5). While it is true that “the power to tax is not the power to destroy” (p.43, quoting Holmes), the mandate’s “practical characteristics pass muster as a tax” and not a punishment (p.43). “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failure to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS” (p.37), and “for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more” (p.35). Ginsburg’s rehearsal of the limitations on Congress’s powers under the commerce clause simply are not relevant under the precedent established by the majority in this case. It is not at all clear that a religious objection will allow an exclusion from the mandate understood as a more expensive exception to a generally applicable tax.
July 6th, 2012 | 4:28 pm
[...] this play with the HHS lawsuits moving through the courts, and its considerations within the law? Some are hopeful. Ultimately, it depends on whether the law still exists in January.Then again, perhaps Obama will [...]
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