I’m reading NFIB v. Sebelius (the Obamacare decision) in preparation for teaching the case to my constitutional law students and came across the following most interesting passage in in Justice Ginsburg’s opinion: “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.”
Has anyone cited this passage in briefs challenging the contraceptive/abortifacient mandate? Does anyone believe that Justice Ginsburg would vote to strike down the mandate when it comes before the Court?
February 27th, 2013 | 2:42 pm
Does it matter at all what ‘impermissibly’ means? I submit that it does, even though you didn’t emphasize that part.
February 27th, 2013 | 3:16 pm
Picking up on what Dan asks, do we interpret the pertinent part of the sentence to mean “impermissibly abridged the freedom of speech, [impermissibly] interfered with the free exercise of religion, or [impermissibly] infringed on a liberty interest protected by the Due Process Clause”? It would seem so.
The administration’s point of view regarding the contraceptive mandate (as I understand it) is that it doesn’t mandate religious organizations to buy a product that includes contraceptive coverage, and a for-profit business doesn’t exercise religion. So I don’t see how this would cause Justice Ginsberg to rule against the contraceptive mandate. But there is a further out in that even if it is considered that the mandate requires the buying of something that interferes with free exercise, it may not interfere impermissibly.
February 27th, 2013 | 3:22 pm
It will probably turn out to mean whatever Justice Ginsburg thinks is impermissible.
February 27th, 2013 | 3:40 pm
I think this could have implications for the decision regarding the plight of private Catholic small business owners. (Who have otherwise been left out of all accommodations offered to large, non profits and self insurers.)
However, I doubt this statement would bring down the entire mandate, nor do I even think it should be interpreted that way.
February 27th, 2013 | 3:46 pm
I am not aware of any use of this passage to attack the Obamacare employer mandate. But as David Nickol remarks, nor is it obvious what use could be made of it.
Recall that Ginsburg wrote this language in considering the individual mandate. In that context, the Court held that there WAS NO individual mandate. Rather, Congress had imposed a tax on people, and had granted an exemption for individuals who had insurance that met certain minimum standards. The Court upheld this practices as a Constitutional exercise of Congress’s taxing powers. NFIB v. Sebelius, slip op. at 35-40.
The so-called employer mandate looks pretty similar. That is, there is no mandate. Rather, Congress has imposed a tax of $2000/yr./employee on employers with 50+ employees, but has provided an exemption if the employer provides insurance that meets certain minimum standards.
Because Obamacare does not impose any “mandate to purchase a particular product,” but merely imposes a tax, I don’t know what use anyone could make of the Ginsburg passage.
February 27th, 2013 | 5:34 pm
nobody.really
Recall that Ginsburg wrote this language in considering the individual mandate. In that context, the Court held that there WAS NO individual mandate
Not quite. 4 justices said there was a mandate and it was ok. 4 justices said there was a mandate and it wasn’t ok. 1 justice said there was no mandate and a tax…which was ok.
That’s clearly saying the law is ok but not giving any clear direction on what is considered a mandate and what types of mandates (if any) may be permitted. IMO a test for whether something is a mandate is whether you can legally defy it.
Letting the parking meter run out may be a modest fine, but it’s not technically legal to do. Your $50 ticket is you breaking the law. On the other hand if you pay $50 more in taxes because you opted not to make charitable donations, you aren’t violating any law. You’re free to not donate and pay higher taxes as a result. Even though in both cases the hard economic cost to you is the same, one is a mandate and the other isn’t. IMO
What’s interesting here is the draft IMO. It’s a mandate for people to physically provide their bodies to be put into harms way by the gov’t. That’s pretty bold and it’s interesting no provision is made restricting a draft to only a declared war or only for national self defense. Granted objectors can opt out of carrying weapons on religious grounds but the gov’t can still draft them. So if the gov’t has that type of mandating power it seems odd to declare it can’t mandate one to buy insurance.
February 27th, 2013 | 9:58 pm
The Becket Fund actually did note with keen interest that passage by Justice Ginsburg on the same day on a brief blog post the same day: http://www.becketfund.org/key-quotes-from-today-decision-that-signal-the-courts-willingness-to-strike-down-the-hhs-mandate/
I believe it’s been referenced in at least a few of their briefs; many of the complaints they are handling were, of course, filed before the handing down of the Obamacare decision last June.
February 28th, 2013 | 1:11 am
This is OT, but I’m curious how an attorney would view the case of Pierce v. Society of Sisters, 268 U.S. 510 (1925), in relation to Obamacare.
The “Oregon Compulsory Education Act” tried to force all children to attend public school. Along with infringing on religious beliefs, the fact that this act would put many non-public schools out of business was also a large part of the suit.
Considering Obamacare is infringing on religion freedom and is most definitely putting many companies out of business, it seems very close to what Obamacare is doing. But I’m not a lawyer.
“In a proper sense, it is true that corporations cannot claim for themselves the liberty guaranteed by the Fourteenth Amendment, and, in general, no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power by the State upon the ground that he will be deprived of patronage;
But where corporations owning and conducting schools are threatened with destruction of their business and property through the improper and unconstitutional compulsion exercised by this statute upon parents and guardians, their interest is direct and immediate, and entitles them to protection by injunction. Truax v. Raich, 239 U. S. 33. P. 268 U. S. 535.”
http://supreme.justia.com/cases/federal/us/268/510/case.html
February 28th, 2013 | 10:53 am
Considering Obamacare is infringing on religion freedom and is most definitely putting many companies out of business . . .
Chester,
How is Obamacare “putting many companies out of business”?
February 28th, 2013 | 12:29 pm
1. Companies going out of business is not a constitutional issue in itself. If Nevada decided to make gambling illegal lots of casinos would be out of business.
2. Clearly the 1925 case where public school was mandated without allowing private schools as an alternative entails a balance between legitimate state interests (seeing that kids are educated) and religious freedoms. Since there’s no real mandate anywhere near the type of mandate that surrounds providing for your kids’ education in Obamacare, how you construct a sensible case out of that argument seems pretty much impossible to me.
February 28th, 2013 | 1:12 pm
It’s possible he was merely being verbose here, since all laws and the government in general are prevented from “impermissibly abridg[ing] the freedom of speech,” etc. Given the use of the word “impermissibly,” the statement approaches a tautology.
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