We all like to make fun of former Speaker of the House Nancy Pelosi saying that we had to pass Obamacare in order to know what’s in it. But there was real wisdom in what she said. I mean, her words were illuminating about the nature of tyranny, but wise none-the-less. That’s because when Congress pushed through the Patient Protection and Affordable Care Act, the most important thing they did was set up a system with massive amounts of power granted to the administrative state. It is that administrative state that tells us what’s in Obamacare, not Congress. And we’ll be learning all about what’s in Obamacare until it dies or the republic ends.
Let me explain. I know the Constitution is super-old but it’s all about separation of powers. You have the legislature for making laws, the executive for enforcing laws and the judiciary for judging cases, right? Good. So each branch is supposed to watch over the other so as to check abuses of power and what not.
The administrative state is what happens when you get rid of Constitutional governance on the sly and put all the powers into a single agency. Congress sets up administrative agencies and then gives them the power to issue law-like rules called regulations, enforce these rigorous regulations and judge infractions. Why would Congress give up all its power? Why not? They love the administrative state. They can get the administrative state to grow the government dramatically without ever having to be held accountable for the individual rules limiting liberty. Heck, we have hardly a clue about the regulations pouring out of these (increasingly militarized) agencies every day. The better question is why the people have gone along with it. But we’ll leave that question aside for now.
A great example of this administrative state in action, among the many great examples of this, is the Health and Human Services Department mandate requiring employers to provide birth control for free, including some forms of birth control that can work by ending human life after it’s begun. This was not in the original legislation passed by Congress over the vociferous objections of the people. This was something that came out of an administrative state set-up — a packed panel that was given authority to recommend certain things that employers would be forced to provide insurance plan coverage of. HHS issued regulations with the requirement and included a religious exemption so minor that Jesus himself wouldn’t have been exempted.
This mandate has been presented by a slavish and servile media as being necessary to address a crisis of inadequate “access” to contraceptives in the country. I know that the most important thing many Americans can think of right now is how to make sure women are either deluged with hormones to keep their wombs barren or have surgery in the event they are, in the President’s own words, “punished with a child.” But the notion that generally inexpensive and beyond-widely available products must be provided by employers at no cost to employees would be silly even if many employers didn’t have serious religious objections. The idea that four abortion-inducing drugs must be covered at no cost to employees but not glasses, insulin, growth hormones or eleventy billion other things is bizarre. Of course, the administrative state probably will get to that point, but for now the contraceptives, sterilization and abortion drugs are just the beginning. And they were the beginning, in all likelihood, because of the political advantage of manufacturing the much-needed War on Women silliness that helped obscure reality in the 2012 election.
But many employers do have serious objections and they’ve been winning court battles. In late June, the Supreme Court ruled in favor of a company that had argued the government had violated the Religious Freedom Restoration Act by forcing it to fund abortion-inducing birth control drugs. The court said that the government had failed to meet the test of “least restrictive means” for achieving its goals. And then a non-profit college was given a preliminary injunction against the mandate while its case works its way through the courts.
So now the Obama administration, in a Friday night document dump, released it’s 8th (!) revision of the mandate in question. Pass the bill to learn what’s in it indeed!
According to the very helpful James Capretta, the new rules have two parts:
1) They change the procedure for granting an “accommodation” for religious non-profits. Where the administration had previously tried to call one accounting gimmick an “accommodation,” to the general dismay of religious liberty advocates, they think a new accounting gimmick will solve their quandary. It doesn’t even come close. In both cases the employer has to do the thing it won’t do — provide drugs that can act as abortifacients. In the previous regime, they had to sign a form saying they objected and then submit it to the insurer, who would then act as if nothing had happened. In this regime, that note would go to HHS and HHS would tell the insurer to go on as before. Big whoop. This does nothing to address the concerns of the Little Sisters of the Poor, Wheaton College, and the 120-some other non-profit plaintiffs suing over this administrative state ruling.
2) Closely-held for-profits could use the same accommodation. There are 193 for-profit plaintiffs suing over the mandate at this time.
The documents came out on a Friday night, which is telling, but already they seem to be landing with a thud. Religious liberty policy analyst Sarah Torre says “The Obama administration’s latest bureaucratic tweak to the mandate would only replace one bad regulation with another.” Arina Grossu, Director for the Center for Human Dignity at the Family Research Council, says:
“What remains an insulting accounting gimmick does not protect the rights of Americans with sincere conscientious objections. It is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom because the employer still remains the legal gateway by which these drugs and services will be provided to their employees. It’s very disappointing that the Obama administration is doubling down on its plans to punish charities and non-profits that assist the poor and homeless, who in some cases have nowhere else to turn for assistance.”
And Lori Windham, Senior Counsel for the Becket Fund for Religious Liberty says:
Under pressure from hundreds of lawsuits, the government continues to retreat. After three losses in the Supreme Court and dozens of losses in courts below, the government continues to confuse the issues. The government issued over 70 pages of regulations, when all it needed to do was read the First Amendment.
These threats to religious liberty are real and serious. But what makes them even more alarming is that they exist because, as Capretta writes, they “purposely wrote a coercive and overbearing HHS mandate rule to create a political issue. The president’s campaign team wanted objections to the rule because the objectors could then be demonized as waging a ‘war on women.’ That would presumably help drive Obama supporters to the polls in 2012.”
As the administration has lost battle after battle after battle in the courts — and with legal challenges piling up — now it’s trying to figure a way out. Capretta says that the administration is trying to come up with a way to tell courts that employers with religious objections no longer have a case while also assuring a left-wing base it hasn’t really backed down since everyone still gets free contraceptives. “Magically, the insurance plans that work with the objecting employers will be required to provide the products and services to the employees — for free.”
This rule change would do nothing and one can only suspect that this weak sauce effort is so laughable precisely because the White House wants to remind low-information single female voters about administrative state freebies that come at the expense of religious liberty and a healthy society.
Yes, this 8th revision is a joke. But the bigger joke is the Congress that keeps abrogating its authority and putting our entire system of governance at risk. But hey, YOLO.