South Dakota Politics

Bad Government

A lot of my colleagues on the left wing of the local blogosphere (well, Cory Heidelberger is still my friend!) defend ObamaCare as the best thing they can get, but what they really want is a single payer system.  That is to say that they want the federal government to directly control the entire healthcare system.  Okay.  Does the federal government seem like a competent administrator just right now?

I seem to remember that Cory once pointed to the Veterans Administration as an example of good healthcare.  If I remember incorrectly, I apologize.  At any rate, we know now that the VA is a scandalous mess.  Veterans waited for treatment and some of them died waiting while VA administrators cooked the books to show that they were promptly serving them and came down hard on whistle blowers.  Don’t believe me.  Believe this guy:

The Department of Veterans Affairs has lost the trust of veterans and the American people as a result of widespread treatment delays for people seeking health care and falsified records to cover up those delays, the agency’s top official said Wednesday.

Acting VA Secretary Sloan Gibson said the VA has created an environment where workers are afraid to raise concerns or offer suggestions for fear of retaliation and has failed to hold employees accountable for wrongdoing or negligence.

Wait!  I typed too fast. 

Despite its problems, Gibson said the VA can turn itself around “in as little as two years” if given additional resources by Congress.

Can anyone believe that?  Give us more money to reward us for our failure and in two years we’ll be back on track. 

Now: do you believe that the Department of Health and Human Services will do a better job of directing the American healthcare system?  Forget about the goofy start of ObamaCare and all the parts of the law arbitrarily canceled or delayed by the Administration.  Instead, consider this:

Federal officials can’t resolve 85 percent of 2.9 million “inconsistencies” on applications for ObamaCare even after nine months of trying, according to new data provided by the administration.

One unidentified state-run marketplace cited situations in which infants and young children were “erroneously identified as incarcerated, according to federal data,” the inspector general for the Health and Human Services Department revealed Tuesday.

Just 425,000 problematic applications have been resolved out of 2.9 million that states and the federal exchange reported, the Centers for Medicare and Medicaid Services told The Post.

These folks don’t know their own asses from oatmeal and it isn’t their fault.  This is ObamaCare as we have it.  Can any sane person think that it would all be better if we could just put more power in the hands of federal bureaucracies? 

Oh, and then there is this:

Federal officials found more than just long-forgotten smallpox samples recently in a storage room on the National Institutes for Health campus in Bethesda, Md. The discovery included 12 boxes and 327 vials holding an array of pathogens, including the virus behind the tropical disease dengue and the bacteria that can cause spotted fever, according to the Food and Drug Administration, which oversees the lab in question.

“The fact that these materials were not discovered until now is unacceptable,” Karen Midthun, director of the FDA’s Center for Biologics Evaluation and Research (CBER), told reporters Wednesday. “We take this matter very seriously, and we’re working to ensure that this doesn’t happen again.”

The disclosure came hours after Thomas Frieden, director of the Centers for Disease Control and Prevention, testified on Capitol Hill that researchers at the agency mishandled live anthrax and other deadly pathogens in a string of mishaps in recent years. “We missed a critical pattern,” he told lawmakers. “And the pattern is an insufficient culture of safety.”

You have to admire that phrase “unacceptable”.  It means that the agencies that are supposed to protect us against small pox and anthrax and “an array of pathogens, including the virus behind the tropical disease dengue and the bacteria that can cause spotted fever” are leaving this stuff around in zip lock bags where any fool or nave can get their hands on it. 

The Wobbly Critics of Burwell v. Hobby Lobby

It is a charming coincidence that Hobby Lobby is coming to Aberdeen just as the firm is enjoying its moment of national fame.  Or infamy, perhaps; the kind that inspires folks who never shopped there before to announce that they are never shopping there again. 

The Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. generated enough heat on the left to keep the Dakotas warm all winter.  I will try to provide a little light.  The Court did not say, as many critics say that they said, that corporations are people.  It recognized that corporations are legal persons, meaning simply that they have rights and duties under the law.  This has been part of law for the last five hundred years.  

I have written about that once before, but I will add one point here.  As Justice Alito noted, corporate personhood is a legal fiction.  It is useful to treat a corporation as a single person when you want to tax and regulate it, sue it, or, if it is the New York Times, grant it the freedom of the press.  However, corporations are composed of and act solely through people.  When you tell a closely-held corporation that it has to do something, you are making a small group of natural persons (five or less) do something.  Even if corporations don’t have rights, David and Barbara Green surely do. 

Almost all the critics of the decision seem to think that it is the job of the nine Justices to decide who they like more and what they would like to see happen.  It is not.  It is the job of the Court to say what the law is.  In this case, the law is The Religious Freedom Restoration Act.  RFRA (say it like it’s a word and you’ll sound like Scooby Doo) was a response to another controversial decision of the High Court.

The Constitution has two clauses dealing with religion: the Establishment Clause, which means that government cannot compel someone to conform to or profess any religion and the Free Exercise Clause, which means that government cannot prevent someone from practicing or professing a religion.  There are two ways to interpret the latter.  One way is the Sherbert Test, announced by the Court in 1962.  According to that test, when an act of government imposes a significant burden on someone’s exercise of sincerely held religious faith, that government must demonstrate that it has a compelling interest in doing so and that there is no less restrictive way to serve that interest. 

The trouble with that test is that it depends on a lot of vague modifiers.  What is a significant burden?  Which beliefs are sincere?  What government interests are compelling?  In Employment Division v. Smith (1990) the Court adopted a simpler and, in my view, better test.  A law violates the Free Exercise Clause only if it is designed to target a religious belief or practice.  So long as a law applies to everyone the same way, regardless of their beliefs, then it constitutional even if it happens to interfere with some religious practice.  So a law that said that only Native Americans are forbidden to use peyote and only for ceremonial purposes would be unconstitutional; however, a law that says no one can use peyote for any reason is constitutional, even if inconvenient for traditional practices.

If the Smith test were all that the Court had to go on, Hobby Lobby would have had no case.  The ACA contraceptive mandate applies the same way to corporations generally, regardless of religious motivations.  It is up to the Administration to decide on exemptions.  However, the Smith decision offended both the left and the right (which may have been proof enough that it was correct).  Congress passed RFRA almost unanimously when both houses were still controlled by Democrats and it was signed into law by President Clinton.  So if you were offended by Hobby Lobby’s victory, now you know who to blame. 

I am not convinced that RFRA is constitutional.  While persons of any religious faith deserve to be protected from hostile legislation, I don’t think that religious faith should give someone special immunities to otherwise valid laws that are not enjoyed by atheists.  Until the Court comes around to my way of thinking, RFRA is the law and it looks to me like the Court has read it correctly. 

Critics of the decision have flooded the media and the net with horrifying questions.  Does this mean that corporations can stop paying taxes if they have religious objections?  Does it mean that a human sacrifice cult can now begin cutting throats?  This parade of horrors is absurd because we know very well how the principle of law works.  It was operative from the early sixties to the nineties as a matter of constitutional law.  It has been operative on Congress at least since 1993.  The courts have routinely balanced the interests of government and religious objections in mostly sensible ways. 

In Burwell the Court ruled that the government could easily have found other means to achieve its objective or providing contraceptive care under the ACA.  Indeed the Administration has found other means in the case of churches, which are also private corporations.  In those cases, the burden falls on the insurance agencies.  Alternatively, the contraceptive technologies in question could be directly subsidized.  The Administration could have avoided the case by extending to Hobby Lobby the same exemptions it extended to churches.  That they did not do so might be because they wanted to show everyone who is boss.  Well, now we know.  It turns out it’s the law.