The View from Right Field

Little Sisters of the Poor and Free Birth Control

There was considerable outcry earlier this week when the Supreme Court upheld Trump administration regulations under Obamacare that provided the Little Sisters of the Poor, and other religious groups, did not have to provide free contraceptive services under their health plan.  Well, actually, it was more complicated than that.  The Obama administration had not required the Little Sisters to provide free contraceptive services; it required the Little Sisters’ health plan to provide free contraceptive services, without charging the Little Sisters for the services.¹  The problem for the Little Sisters was, as I understand it, that they did not feel comfortable with what they had to do in order to opt-out of providing free birth control.² 

Apparently, 70,000 or more women could be left without free birth control under the Trump administration regulation, which bothers (outrages) a lot of people.  But the point is, which a lot of people seem to miss, is there is a simple way to make sure free contraceptive services are provided to all women without forcing groups like the Little Sisters to violate their religious principles: Have the federal government pay for it.  If free birth control is that important, just pass a law and provide for it.  Nobody’s religious principles are violated,³ and women get free birth control. 

Two Bad Supreme Court Decisions – From a Process Point of View

It’s been a bad week for people who see the job of the Supreme Court as applying the law, as opposed to coming up with ways to do what Congress should do but hasn’t.

First, it was the LGBT workers decision on Monday in Bostock v. Clayton County.  I think that people shouldn’t be fired from jobs for being gay, lesbian, etc.¹  And I think Congress should pass a law to that effect (as should states).  But Congress hasn’t.  I do not believe that Title VII of the 1964 Civil Rights Act, when it prohibits discrimination in employment because of an individual’s sex, covers discrimination because of sexual preference, gender identity, etc.  “Sex” did not include those things in 1964, and it shouldn’t be interpreted as including them today.  There is a proper way to do it: Pass a law.

With Impeachment All Over the News, Why Am I Blogging About Baseball?

You may have noticed that, while the impeachment trial is blanketing the news in Washington (and probably TV/cable news¹), I have had two posts directly on baseball and another that mentions baseball tangentially in the past week.  The reason, I suppose, in addition to the fact I always post on the Cubs Convention, is that the impeachment trial is so predictable – and dispiriting.  I understand the impeachment question is critical and important to many people, on both sides of the issue.  It’s just I’m not one of them. 

As I have said before, I don’t like Donald Trump.²  I do not think he is a good president, especially on foreign policy (and many domestic policies).  But it’s hard to take the Democrats seriously, either.  I understand they think President Trump is a terrible president.  But too many of them have wanted to kick him out since he took office.  If it wasn’t one thing, it was another.  You wonder if the charges they have come up with in the articles of impeachment are so bad that they would want to get rid of a Democratic president for doing them or if it is just the best they have been able to come up with to get rid of President Trump.

Mass Shootings: After We “Do Something,” Let’s Try to Do Something That Actually Works

With two more mass shootings, in El Paso and Dayton, we are told we must “do something.”  Generally, that means gun control, though it now also seems to include “red flag” laws, as well as more spending for mental health and doing something about violent video games. Okay, let’s do it, subject of course to the Constitution.  Not only the Second Amendment, but also the other ones: the First, Fourth, Fifth, etc.

But after we “do something,” let’s also try to do something that works.  Megan McArdle, at The Washington Post, has a couple of ideas on this subject (here and here).  Aggressive stop-and-frisk policing has seemed to reduce murder rates in places like New York City, but many people don’t like what they see as police harassment of minorities.  Also, given the distrust of the police by many people in places like Chicago, you wonder how it would work there.  Plus, these kinds of tactics wouldn’t stop mass shootings, though reducing day-to-day murders might save more lives than reducing mass shootings over a whole year.

Declaring a “National Emergency” to Build a Wall Is a Terrible Idea

President Trump has apparently decided to sign the budget bill and then declare a “national emergency” to build a wall on the border with Mexico.  I’ll be brief: This is an absolutely terrible idea.  Presidential power once stretched never returns to its prior limits.  A national emergency that lets President Trump build a wall, will let his successor do other things.  Even if you approve of the former, you may not approve of the latter.  And even if courts or Congress stop President Trump from doing this,¹ the mere fact that President Trump tried to use emergency powers in this way will be a precedent for future presidents to use their emergency powers in other ways.  This is a really bad idea.
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¹ It could be an interesting question as to who would have “standing” to challenge President Trump’s order in the courts.

Can Americans Be Trusted With Campaign Finance Disclosure? – An Update After the Brett Kavanaugh Hearings

Four years ago, I wrote a post asking “Can Americans Be Trusted With Campaign Finance Disclosure?”  I noted that, while some people want to limit political spending either by limiting how much people can contribute or by limiting how much candidates can spend, the First Amendment (at least as currently interpreted by the Supreme Court) doesn’t allow either of those.  Therefore, as I said back then:

“[T]hey fall back on disclosure of contributions.  If we can’t limit spending, they say, at least we can require contributions and spending to be disclosed.  In the words of Supreme Court Justice Louis Brandeis (before he was on the Court), ‘[s]unlight is said to be the best of disinfectants.’”

But, I asked, as I do again in the title of this post: Can Americans be trusted with campaign finance disclosure?  This question recently returned when a federal district court judge threw out a 37-year old Federal Election Commission rule dealing the disclosures that nonprofit advocacy groups have to make with respect to the names of their donors.  Without going into the technical detail of the case,¹ the judge’s ruling increases the number of people whose names have to be disclosed, even though the people aren’t making contributions to candidates, but just to groups that are making independent political expenditures.

Masterpiece Cakeshop – Again

On June 4, the U.S. Supreme Court reversed the decision of the Colorado Civil Rights Commission that Masterpiece Cakeshop had violated the rights of a customer who asked Masterpiece Cakeshop to bake a special cake for a same-sex marriage.  The Supreme Court’s decision was narrow.  The Court held that the Colorado had violated the rights of Jack Phillips, the owner of Masterpiece Cakeshop, under the Free Exercise clause of the First Amendment, by the way it treated him and his claim of religious belief for what he did.  The Court specifically did not say whether, in a proper case, where the state was not hostile to a business owner’s religious beliefs, it might not hold that a business owner could be forced to bake such a cake.  

Guess what.  That case might be coming to the Supreme Court.  Because on June 28, just three-and-one-half weeks after the U.S. Supreme Court’s decision, the Colorado Civil Rights Commission found probable cause that Mr. Phillips had unlawfully discriminated in another case, this time by refusing to bake a custom cake (blue on the outside, pink on the inside) to celebrate the seventh anniversary of Autumn Scardina’s transition from a man to a woman.  (Also, here.)  Set-up, anybody?

Brett Kavanaugh, the Supreme Court, and Roe v. Wade

With the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court starting,¹ one of the questions will be about women’s right to choose/abortion.  Will a Justice Brett Kavanaugh vote to take away a woman’s right to choose by overturning Roe v. Wade?  While Judge Kavanaugh told Senator Susan Collins that Roe v. Wade was settled law, settled law can be overturned. 

What people are missing, however, in talking about whether the Supreme Court might overturn Roe v. Wade, is that overturning Roe v. Wade is not going to take away a woman’s right to choose.  The Equal Rights Amendment was never adopted, but over the last 30+ years all, or at least almost all, of what the Equal Rights Amendment was supposed to accomplish has happened anyway.  It has been done by laws, regulations, and the general agreement of society.  Women are heads of Fortune 500 companies.  Female soldiers are going into combat as members of our military.  Women are as equal today as they would have been if the Equal Rights Amendment had been adopted 35 years ago.

Is Judge Brett Kavanaugh Anti-EPA or Just Pro-Proper Process?

Environmentalists are worried about Judge Brett Kavanaugh, Donald Trump’s nominee for the Supreme Court.  According to David Savage of the Los Angeles Times, “Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Trump has departed.”  Pat Gallagher, legal director for the Sierra Club, goes perhaps further:

“He would be a disaster for the environment.  He has a disdain for regulation, particularly from the EPA.  Kennedy was the swing vote in this area.  If we have to wait for Congress to act on climate change, we are doomed.”

The last sentence gives the story away.  Environmentalists haven’t been able to convince Congress to pass the legislation they think is necessary so they have been relying, during the Obama administration, on federal agencies, especially the EPA, to do what they want.  What environmentalists don’t like about Judge Kavanaugh is that he has been skeptical of federal agencies doing things that are arguably beyond what Congress has authorized them to do and that, ultimately, he is unwilling to let policy ends prevail over the means of proper process.

Cakes for Gay Weddings: The Masterpiece Cakeshop Decision

It will be interesting to see how the commentariat reacts to the U.S. Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was announced today.  While at least some supporters on both sides of the issue will probably get carried away, the decision itself, at least as I understand it, was fairly narrow.  Specifically, the Court held that the Commission had violated the rights of Jack Phillips, the owner of Masterpiece Cakeshop, under the Free Exercise clause of the First Amendment by the way it treated him and his claim of religious belief for what he did.  The Court did not, however, say the Commission violated Mr. Phillips’s rights by telling him that he had to make a cake for a gay wedding.  It left that question for another day.  Rather, the Court held that the Commission violated Mr. Phillips’s rights by showing, in the words of the Court’s Syllabus of the case,

“a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.  As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”