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The Hobby Lobby case was, in my judgment, an easy one, a point that’s made very well by Justice Alito’s straightforward analysis in the opinion. The logic is simple: (1) corporations are persons because Congress said so in the Dictionary Act; (2) Hobby Lobby’s right to religious freedom is violated, under the Religious Freedom Restoration Act, because the contraceptives requirement for mandatory insurance supplied by employers contravenes the owner’s sincere beliefs; (3) the government did not explore any less burdensome alternatives to the mandate.
More importantly, however, this case shows the extreme ideological ends pursued by the Obama administration through its legal powers. It is thus of a piece with the Noel Canning recess appointments clause case from last Thursday. In both cases, the President pursued extreme arguments in court to advance an ideological agenda — today, it was to sweep religious minorities into ObamaCare; on Thursday, to create a union-friendly NLRB.
In both cases, the policy preference of Democrats were already broadly being applied. Most employers who supply insurance under ObamaCare will not have religious freedom rights at stake. The NLRB and labor law already gives unions broad rights to organize. In order to push its ideology as far as it will go, however, the administration had to pursue even the small number of religious-oriented small businesses to force them into the contraceptive mandate. To guarantee unions a 100 percent win rate (rather than the, say, 75 percent win rate in the NLRB) Obama had to illegally appoint the boards’ officials.
To me, this is President Obama’s fundamental abuse of presidential power. He is not broadly interpreting his powers to respond to emergencies or national security challenges; he is relying on extreme interpretations of them to play small ball politics and notch wins for his most ideological supporters. It is not only a misuse of power, it is also damaging the institution of the presidency — something that will become apparent when the full powers of the office really are required.