Supreme Court

Attorneys General to Sebelius: Stop breaking the law

A group of attorneys general from 11 states has fired off a letter to Health and Human Services Secretary Kathleen Sebelius expressing concern about “illegal executive action” related to President Barack Obama’s administrative fix.

“The President’s ‘administration fix’ is unlawful for several reasons. First, it is a violation of the President’s responsibility to ‘take care’ to execute the laws faithfully,” wrote the attorneys general in the letter. “Second, it unlawfully creates either a new statutory obligation in violation of the separation of powers or a new rule in violation of the Administrative Procedure Act.”

In mid-November, after millions of cancellation letters caused by Obamacare became too much of a hot button to ignore, President Obama announced an “administrative fix” for canceled health plans. What the White House proposed was to allow state insurance commissioners and insurers to decide whether they would allow affected plans to be extended for one year.

The attorneys general argue that President Obama’s “actions go well beyond the discretion provided under the Supreme Court’s precedent,” citing a 1985 case, Heckler v. Chaney, in which the high court unanimously ruled when enforcement action by federal agencies may be subject to judicial review. In Heckler, the federal agency in question was the Food and Drug Administration (FDA).

Supreme Court issues temporary injunction against contraceptive mandate

Supreme Court Justice Sonia Sotomayor issued a temporary injunction against enforcement of Obamacare’s contraceptive mandate in the waning hours of 2013, a provision of the law that is the subject of a number of federal court cases.

“Upon consideration of the application of counsel for the applicants, it is ordered that respondents are temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, 42 U. S. C. § 300gg-13(a)(4), and related regulations pending the receipt of a response and further order of the undersigned or of the Court,” wrote Sotomayor in the order on New Year’s Eve. “The response to the application is due Friday, January 3, 2014, by 10 a.m.”

The case — Little Sisters of the Poor v. Sebelius — deals with a religious charity organization run by nuns who have committed themselves to serving the poor and needy. Among the vows nuns take is a vow of chastity.

Had Sotomayor not issued the injunction, Little Sisters of the Poor would have been subject to the penalties for not offering health plans that cover contraceptives, including the morning after pill, Plan B and Ella, which many consider to be tantamount to abortion.

“We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” said Mark Rienzi, Senior Counsel for the Becket Fund for Religious Liberty, which is representing the nuns. “The government has lots of ways to deliver contraceptives to people–it doesn’t need to force nuns to participate.”

Biggest Stories of 2013: Supreme Court Partially Strikes Down DOMA

Throughout New Year’s Eve, we’ll be going through the 10 biggest political stories of 2013 as selected by United Liberty’s contributors. Don’t forget to chime in on the biggest stories of the year on our Facebook page.

Supreme Court

When 2013 started, only nine states in the United States recognized same-sex marriage, including three that did so just two months earlier on Election Day. As the year went on, three additional states joined the list via legislation.

The biggest moment in the history of the marriage equality movement to date, though, occurred in June when the Supreme Court handed down its opinion in United States v. Windsor which declared Section 3 the Defense of Marriage Act (DOMA) to be unconstitutional.

DOMA, of course, had been passed by Congress with huge majorities in 1996 in response to the very first steps toward attempting to give gays and lesbians the right to marry and was the beginning of a push back against same-sex marriage, and Section 3 was the portion of the law that defined marriage for purposes of federal law as being only between a man and a woman. This was the start of a “traditional marriage” movement that was hugely successful for the next twelve years as laws or constitutional amendments banning same-sex marriage passed in the vast majority of the states, typically by large majorities.

Georgia legislators seek to ban state agencies from implementing Obamacare

Nullify Obamacare

The Georgia General Assembly is gearing up for another legislative session and some members are already pre-filing bills that could be considered next year. Among those pieces of legislation is a measure — The Georgia Health Care Freedom and ACA Noncompliance Act — introduced by state Rep. Jason Spencer (R-Woodbine) that would ban state agencies from providing any support to implement Obamacare:

A group of five Republican Georgia state legislators opened up a new line of attack against the Affordable Care Act Monday, following their counterparts in South Carolina in a movement that could soon involve other conservative states.

“Our (proposed legislation) simply says the state of Georgia and any political entity, any agency, any public university or college will simply not be able to implement Obamacare at all,” said lead sponsor Rep. Jason Spencer (R-Woodbine) in a news conference on the State Capitol steps.

“We’re telling the Obama administration: ‘If you want the ACA in Georgia, you’re going to pay for it and you’re going to implement it. And don’t expect aid from Georgia in doing so,” said co-sponsor state Rep. Michael Caldwell (R-Woodstock).

Kentucky Republicans file brief at Supreme Court, seek to end Obama’s war on coal

Republican members of Kentucky’s congressional delegation have filed an amicus brief in a pending case at the Supreme Court which could have big implications on the Commonwealth’s coal industry and, by extension, its economy.

The case, Utility Air Regulatory Group v. Environmental Protection Agency, deals with regulations enacted by the Obama Administration in 2010 that would impose stricter limits on emissions from “stationary sources,” such as coal-fired plants. The EPA claims this authority through a 2007 Supreme Court decision, Massachusetts v. Environmental Protection Agency, which allowed the agency to regulate vehicle emissions.

The problem is that the EPA essentially re-wrote provisions of the Clean Air Act to raise the emissions threshold to 75,000 tons per year from 100 tons, which, as the Wall Street Journal recently noted, “would require some six million buildings to get environmental permits, including such grand polluters as churches and farms.”

“Recognizing that such a rule would create ‘absurd results’ like shuttering the entire economy, the EPA rewrote Congress’s numbers and adjusted the threshold to 75,000 tons from 100 tons,” the Journal explained. “EPA’s clear political purpose was to escape a large political backlash to its new rules by unilaterally limiting their reach.”

Kentucky Republicans argue that the EPA has overstepped its bounds by trying to re-write the law, thus usurping power from the legislative branch, and promulgate new rules that would hurt the coal industry.

Rand Paul on domestic surveillance: Strengthen the Fourth Amendment

Rand Paul

The solution to the National Security Agency’s broad domestic surveillance apparatus, according to Sen. Rand Paul (R-KY), is to pass legislation applies Fourth Amendment protections to third-party records.

“I would like to apply the Fourth Amendment to third-party records,” said Paul, referring to the NSA’s bulk data collection programs, which includes obtaining records of Americans’ phone calls. “I don’t think you give up your privacy when someone else holds your records. So, when I have a contract with a phone company, I think those are still my records. And you can look at them if you’re from the government if you ask a judge.”

The comments came during an appearance on Fox News Sunday. Paul also disputed the legality of what the NSA is doing, arbitrarily collecting these records, even if they don’t in anyway relate to actual investigations into terrorist activity. He also said that the Supreme Court needs to take a look at the issue of privacy.

Ron Paul: Hobby Lobby case transcends abortion debate

The Hobby Lobby lawsuit pending at the Supreme Court isn’t about abortion or contraception, says former Rep. Ron Paul (R-TX), it’s about rights.

Obamacare supporters paint this as a case of Hobby Lobby refusing its employees an abortion or contraception, which, they say, is a violation of the employees rights. But that’s not at all what Hobby Lobby has in mind, they simply don’t want to be forced to pay for those things for their employees.

“Forcing Hobby Lobby to pay for abortion services is especially offensive because Hobby Lobby’s owners consider abortion a form of murder. Those who, like me, agree that abortion is an act of violence against an innocent person, will side with Hobby Lobby,” wrote Paul in his weekly column.

“However, this case is not about the legality of abortion. It is about whether someone can have a ‘right’ to force someone else to provide him with a good or service,” he explained. “Therefore, even those who support legal abortion should at least support a business’s right to choose to not subsidize it.”

Hobby Lobby Stores, a craft chain with 578 stores and more than 13,000 employees, filed the lawsuit against the contraception mandate in September 2012, claiming that it violated the religious liberty of the owner and founder of the company, David Green, under the Religious Freedom Restoration Act of 1993 (RFRA).

Proposed IRS tax-exempt guidance undermines free speech

Just before the Thanksgiving holiday, the Treasury Department and Internal Revenue Service (IRS) announced the issuance of proposed guidance for organizations seeking tax-exempt status. The guidance is a response to the tax agency’s targeting of conservative and Tea Party organizations, which began in 2010.

The Treasury and IRS proposed guidance defines “candidate-related political activity” and “would amend current regulations by indicating that the promotion of social welfare does not include this type of activity.” The agencies also will require groups engaging in candidate-related activity — including any communications that identify a candidate or party, voter registration and GOTV drives — to disclose contributions.

Via Lachlan Markey of the Free Beacon, some experts, rightly, allege that this is an attempt by the Obama Administration to side-step the 2010 Supreme Court’s Citizens United ruling and stifle free speech:

“This is an astonishing—and from this feckless, hyper-partisan administration, unsurprising—effort to curtail the free speech of Americans who come together to better their community,” said campaign finance attorney Dan Backer in an email.

The move was widely seen as a reaction to an ongoing scandal involving IRS treatment of applicants for 501(c)(4) status that were singled out for their perceived affiliations with the Tea Party movement.

Supreme Court to hear case over Obamacare’s contraception mandate

The Supreme Court agreed yesterday to hear a case over Obamacare’s contraception mandate, a requirement on employers to provide health plans that cover emergency birth control, and its implications on religious liberty.

Hobby Lobby Stores, a craft chain with 578 stores and more than 13,000 employees, filed a lawsuit against the contraception mandate in September 2012, claiming that it violated the religious liberty of the owner and founder of the company, David Green, under the Religious Freedom Restoration Act of 1993 (RFRA).

Filings in the case — Sebelius v. Hobby Lobby Stores — explain that Green runs his business “with religious principles in mind” and points to the company’s mission statement, which commits to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”

The contraceptive mandate would include coverage for the morning after pill, Plan B and Ella, which Green believes is tantamount to abortion. Hobby Lobby claims that it could face fines of $475 million each year for non-compliance.

“If Hobby Lobby instead drops employee insurance altogether, it will face severe disruption to its business, significant competitive disadvantages in hiring and retaining employees, as well as penalties totaling $26 million per year,” said the brief filed by the company.

Supreme Court passes on NSA spying challenge

The Supreme Court met last week to consider a request made by the Electronic Privacy Information Center (EPIC) to hear the a case concerning the National Security Agency’s (NSA) bulk data collection program.

EPIC argued in its mandamus petition that the Foreign Intelligence Surveillance Court (FISC) and the NSA had overstepped its authority in authorizing and carrying out the bulk collection of Americans’ phone records. The organization maintained that the Supreme Court was the only court with jurisdiction to hear the case.

Unfortunately, the Supreme Court denied the request on Monday (p. 11), which means that EPIC must first work through lower courts. That’s not an easy task, as Lyle Denniston explained yesterday at SCOTUSBlog, because the Justice Department “has attempted to thwart review of previous challenges.”

“Obviously, we are disappointed by the Supreme Court’s decision,” said Marc Rotenberg, president of EPIC and lead counsel in the case, via a statement. “The surveillance order was clearly unlawful. There is simply no way to establish relevance for the collection of all telephone records on all US telephone customers for an intelligence investigation.”

“The FISA makes it very difficult to challenge these determinations. That is why we urged the Supreme Court to take the case and reverse the order of the Foreign Intelligence Surveillance Court,” he added.

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