Saturday, November 30, 2013

The Hobby Lobby Case

This week the Supreme Court accepted two cases which could become a fundamental base for a new understanding of the role of government.    The President's Senior Advisor argued in an article on HuffPost that  A Woman's Health Care Decisions Should Be in Her Own Hands, Not Her Boss's.  That is something I agree with totally.   But then Valerie Jarrett perverts her own argument by assuming that if the government mandates something it should also be able to impose its values on individual employers.  There I disagree.  The two cases accepted were  Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356).   The left has argued that this is a "radical" change in the way law is interpreted by adding individual rights to corporate ones.  Jarrett seems to think that the ACA should have imposed a common set of standard on employers not individuals (although there is indeed an individual mandate) and seems to ignore that the individual mandate, if interpreted in her broad reading, coercive.

Jarrett writes "Ensuring the full freedom of women as health care consumers to access essential preventative health services is a vital component of the Affordable Care Act (ACA). And nowhere are health decisions more personal or essential to keep in their hands, than those regarding reproductive health. The ACA was designed to ensure that health care decisions are made between a woman and her doctor, and not by her boss, or Washington politicians."   Unfortunately the ACA goes several steps further.

Could government conceivably require health insurers to add certain coverages for health policies?  Of course.  That is especially true if the government is providing the service.  But should government be able to force employers, who have formed in a corporate structure primarily in response to  our tax laws, to offer coverage which violates their religious beliefs?  I think not.

I am not an attorney.   But I believe that the four justices who voted to overturn the ACA in the courts are most likely to be joined by the Chief Justice, who wrote the convoluted opinion which formed the basis for upholding the ACA.  It is also pretty clear that the four justices who concurred with Roberts' decision are unlikely to change.  So we will be stuck with another 5-4 decision.

Ultimately, there are plenty of alternatives to the mandate and to the one size fits all philosophy of Jarrett.   I wonder whether Jarrett has ever tried to think about what Hayek called the "fatal conceit" - ultimately centralized solutions like Obamacare will fail because they ignore the rich diversity of the human experience.

This story has another twist.  What I have not seen is a set of suits challenging the President's arbitrary and capricious implementation of the law he challenged.   I am not sure where there is any authority for a Chief Executive to selectively over-rule provisions of an enacted law so blatantly.   His delay of the employer mandate and now other provisions without direct congressional authorization is a testament to the complexity of implementing this Leviathan - yet no where in the statute does he have the authority to delay those provisions that are hard to implement - especially when the delays are timed in such a manner as to sweep the problems under the rug until after the 2014 elections.

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