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The Hellerstedt Decision and Operation Chokepoint
When Texas’ various abortion clinic restrictions were struck down by the Supreme Court earlier this year in the Hellerstedt decision, (full text found here) liberals cheered and conservatives were dismayed. The surface reasons for why each side felt as they did are obvious and not particularly surprising or interesting in and of themselves.
What isn’t as obvious is the fact that the reasoning underlying the decision would cut in the exact opposite direction of those parties’ normal rooting interests if it had been rendered on any other topic but abortion.
The underlying case in the Hellerstedt decision involves the Texas Legislature’s attempt to force abortion providers to have both hospital admitting privileges and the clinics they operate from meet the standard of an ambulatory surgical center. Without a doubt, these are both laudable goals. However, they are also without a doubt a very steep regulatory burden for potential abortion providers to meet. So steep in fact that the vast, vast majority of the abortion clinics in Texas couldn’t meet those standards and would have been forced to shut down. Hence, the lawsuit.
This situation is a fine example of Texas attempting to skin a cat by other means. Texas lawmakers know that they can’t ban abortion directly – the Supreme Court ruled that there is a right to it, and such a law would be struck down on Constitutional grounds within seconds of Governor Abbot’s pen touching the paper – so the Legislature did the next best thing by attempting to regulate the industry out of existence. This, they thought they would accomplish through a Trojan Horse; crafting legislation offering a “solution” to a problem which simply didn’t exist to any meaningful degree but whose real aim was to substantially damage the industry surrounding the underlying practice and therefore effecting a ban.
(The number of abortions resulting in complications requiring hospitalization is not negligible, but the number of deaths of woman reported in Texas due to the practice is zero. Even Operation Rescue couldn’t cite a specific case where a woman who had sought an abortion in Texas had died due to complications.)
The point of this article isn’t to discuss the appropriateness of abortion as much as it is to discuss the appropriateness of the Supreme Court’s rationale and its remedy to the situation. To wit, the Court struck down Texas House Bill 2 on the grounds that the regulations that it sought to impose were both excessive and represented an undue burden. Although I might disagree with the Justices about the underlying subject matter, I couldn’t agree with them more on the substance of the case. This is a fine example of State government overreach when it comes to the rights of the citizenry, and whether we agree with this particular expression of it or not, there is at least a measure of intellectual consistency within this decision given the Court’s position.
The costs that these regulations would have imposed in comparison to the relative benefits are also far out of proportion. That’s the hallmark of bad law.
In order to illuminate the point further we now need to turn to Operation Choke Point. For those who don’t know, OCP (no, not that OCP…) is an Obama Administration initiative designed to choke out “undesirable” industries, such as pay day lenders, porn shop operators, pot shops and yes, even gun or ammunition retailers by restricting their access to banking services. This they accomplish via urging the FDIC to refuse deposit insurance to banks who did business with such vendors. The business that can’t gain access to banking is generally toast, so OCP is the Obama Administration’s version of Texas’ HB 2. It is on its surface a well-intentioned policy meant to protect people, but in reality it’s a kind of non-legislative prohibition on certain activities; an infringement on peoples’ right to freely associate and engage in what is otherwise lawful activity.
Payday lender Advance America has filed suit to break the governments’ choke hold on them, and I suspect they will win with rationale similar to that employed in Hellerstedt.
It’s hard to justify these cases going in the other direction on the grounds under which they were brought if you’re a conservative. The consequences would be extremely dire. Imagine if you would the State of Massachusetts deciding that rather than trying to outlaw guns, they would simply impose a $1,000/round tax on ammunition? Perhaps they could impose a transfer fee on firearms (such taxes already exist on other property such as cars and houses) equal to ten times the value of the gun? They could generate any cockamamie justification for this under the heading of “recouping the costs from gun violence” or other such nice-sounding rot. (I can hear @Tommeyer screaming at me: “Don’t give them any ideas!”)
As onerous as they might be, these actions wouldn’t ban firearms – but they would make their acquisition or use extremely difficult. In my estimation they would also directly violate the spirit (if not the letter) of the Second Amendment and would constitute “excessive” regulations. One could only hope that the Court would see the potential case of People V. State of Massachusetts in the same light.
As conservatives, we should strive for fidelity to the law first and foremost. Allowing these sorts of legislative or regulatory workarounds might feel good when it comes to “getting your way” but on our side of the aisle, process should be paramount.
To that extent, Hellerstedt, and hopefully the pending victory by Advance America over the FDIC and their cronies at the Justice department will be wins for conservative jurisprudence.
Published in General
Wonderful. How we arrive at our decisions is almost always more important than the actual decisions themselves. At least if you want to advance conservative governance.
Well, the problem is that there is no guarantee the payday lender will win. Abortion is a sacrament to the left, their holiest act of devotion. Mere finance cannot compare.
Also, abortion is a surgical procedure regardless of its sacred status
If you manage to arrive at a decision that justifies slavery, you’re a damned magical man, but of course, you’d also be wrecking the republic, as happened once before.
Ultimately, the rightness of the decision matters. To have leeway or discretion about the means for decision making, that ultimate ground has to be uncontested. There is no other way to organize a partial independence of means from ends.
So really, almost always is not the right way to think about things. There are cases which, however, rare, are far more important than all others put together–or almost. Not every case has a potential to upturn the legal-political order.
Abortion is comparable to slavery in its the depth of its reach into the sources of the political-legal order. It will have to get settled–it can be settled peacefully–but I feel sure this line of argument about means is mistaken.
But there is, tied up to it, a question of the sovereignty of the people. The tyranny of a bunch of people in robes is an insult to the dignity of the American people. The notion that it can be endlessly continued without worry strikes me as amusing. It the political conflict around abortion becomes serious, the Court will begin to show a great weakness, which may be said by some to be comeuppance for the stupid arrogance of these latter days.
I agree with you on the general point that neutral principles should apply and we are better as a society if that occurs. There is a wrinkle however, when it comes to the Hellerstedt case and its potential applicability to other regulatory schemes. It goes back to the artificial distinction the Supreme Court began to draw in the 1930s, and then crystallized in Williamson v Lee Optical (1955) – between “personal liberty” and “economic liberty”, or, as the Court wrote in Hellerstedt, it:
The sleight of hand here is to refer to economic “legislation”, rather than “liberty”, a distinction the Founders would not have recognized as they considered the protection of property rights the most important element in protecting liberty. Once abortion was declared a constitutionally protected personal liberty rules governing it became subject to the most stringent level of judicial review. I’d be interested in hearing from the other lawyers here, but it strikes me that the Court may find that a payday lender is not entitled to the same level of review.
Under existing law, abortion is legal. The Court is at least demonstrating consistency in this situation while unwittingly advancing the idea of striking down these obtrusive regulations.
And if the ends justify the means we could end up enslaved to a tyrant. I never said the result doesn’t matter, I said that the process matters more. This is a basic insight of conservatism. If the process is right, the results will tend to be correct more often than not.
As I explained, I didn’t want to discuss the specifics of abortion in this thread. The vehicle is definitely an imperfect one in this case but I’m disappointed that none of the conservative justices felt like the Texas law was a stealth abortion ban on its face given stare decisis.
We can also argue about the role of federalism in this or that situation as well, but even that has limits. At some point Judges need to work with the law and not on their own political hobby horses. If we wanted an unelected 9 member super legislature we should just say so.
It also makes me wonder how much politicking goes on between the Justices pre and post voting.
The cases really aren’t comparable. Would the proposed requirements be considered a problem if applied to another form of surgery practiced outside of hospitals?
I doubt we could sky n the Supreme Court to strike down a tax targeted at gun owners. We have to rely on the political process to defeat such plans. I’m sure there are examples less severe than your hypothetical $1000/round tax that are still onerous burdens against Constitutional rights.
Good article and good questions. I would point out that one of these cases involves state regulation and one involves federal regulation. As a federalist kinda guy, I would allow states more room to do regulatory overreach.
No doubt there are issues revolving around Federalism here, but in the final analysis I think we’re dealing with a similar mentality. We don’t like a thing, but we can’t figure out a way to ban the thing. So, we decide we’re going to impose crippling regulations on the business interests that surround the thing (which themselves have minimal ancillary benefit) in order to create a de facto ban of the original thing we don’t like.
The upper bound of Federalism is the limits placed on the States by the Federal Constitution.
There is a rather crucial difference you did not address: In Texas, the regulations were passed by the legislature and signed by a governor. In Choke Point, they were imposed through various “advisory letters”, and not even through normal and regular legislative rule making and publishing processes. Choke Point is an example of the worst sort of rule by decree and fiat, and it is on those grounds that it should be struck down.
The Obama administration flat out threatened and strong-armed banks into acting in ways contrary to regular business – it demanded banks turn away certain customers based on its own caprice, then blackmailed them into doing so by threatening to illegally withhold services (FDIC insurance) that they are legally obligated to provide. This regime, in other words, attempted to enforce power it does not have, and withhold services it is not allowed to withhold.
This makes the cases extraordinarily and fundamentally different.
This is true, but simply because something is passed by a legislature doesn’t make it any less terrible.
In this situation, though, the merits of the law are a secondary question. The process (or utter lack thereof with OCP) is what is fundamental, and so the question of the legality of the law in Texas is fundamentally different from the question of the legality of OCP. The cases, therefore, have practically nothing in common from the point of view of the people challenging the governments. In one you have due process used to change a set of laws in an area where the state of Texas already has authority (regulating medical practice), and so the case revolves around the limits of what Texas can actually regulate (and, sadly, the courts have decided to disallow nearly all forms of regulation when it comes to abortion – the old joke amongst us pro-lifers is that ear piercings are more regulated than abortions), and in another you have outright illegal coercion by a rogue presidency, and direct interference in private business transactions. In the OCP case, you also have what are in effect bills of attainder too – direct action against specific political undesirables.
Yes the specifics of the legal cases are different, but we are talking about more than just the strict legal process here, or at least I think that is Majestyk’s point. He’s talking about more fundamental principles of governance. I don’t think that OCP would have been any less a violation of the principles of conservative governance had congress passed a law and Obama signed it.
Great point about a key legal difference which puts these cases in dissimilar postures.
One of Maj’s key points was that the same legal challenge that was successful against Texas (attempting to regulate away a “right” – though abortion is nowhere enumerated as such) should also be successful against OCP, I’m saying it would not because different principles are at stake. The courts have effectively decreed that almost every regulation or restriction on abortion is illegal, making it almost sacrosanct. They did not strike down the Texas law because Texas cannot regulate medical practices, they struck down the law because the regulations would forced the clinics to radically change their practices or else shut down, and the clinics are routinely protect by the courts from having to do so. There are decades of court precedence in this. Regulating the clinics, moreover, is an issue of principled conservative governance, and the Texas law was, in no small part, a response to the horrors of Kermit Gosnell.
And something like OCP, if passed by Congress, would be very different. There are decades of court precedence that allow the BATFE to regulate firearms dealers and the business they can do. The same increasingly applies for payday lending (Dodd Frank being the most recent such example). These industries enjoy little protection and much scrutiny, and are not, unlike the clinics, protected as some sort of public necessity.
What gives an unconstitutional law imprimatur that a set of regulatory mandates decreed by unelected bureaucrats doesn’t have? Nothing, as near as I can tell.
Both have the common feature of seeking to use the regulatory power not merely to regulate, but to functionally ban.
The question that is most prescient in my mind is: What benefit is provided by the particular regulation in mind relative to its costs? The benefit in both situations is non-existent. The regulation is seeking to fix problems that don’t exist. The true cost is the destruction of what are legal enterprises through regulatory fiat.
Conservatives shouldn’t be impressed with the cleverness of their team’s politicians when they do this kind of stuff any more than they are when Democrats engage in this sort of legerdemain – without regard to the underlying matter.
Except that isn’t true. Late term and partial birth abortion bans have been successfully implemented, in addition to fetal pain statutes. There are a lot of regulations on abortion naturally because there are a lot of regulations on Doctors to begin with – in addition to the legal and insurance burdens they carry in order to practice their craft.
I don’t want this to be a thread about abortion though.
If you read the decision they struck down HB2 because the regulations were excessive and unnecessary; the law was transparently attempting to ban most abortions through other means.
No matter how horrific Kermit Gosnell’s abbatoir was, the main issue that I think we saw there was a generally permissive attitude in regard to how existing regulations were enforced. The answer to Gosnell is not to pass new regulations, but to enforce the ones that are on the books thoroughly.
Under this logic, what would stop Massachusetts from doing exactly what I said – aside from the threat of having the tax struck down?
OCP doesn’t even fall into the category of regulatory mandates.
Those have been the exceptions.
True, though in theory (which I will agree is, in this case, like saying “in theory it is possible to blow up the earth”) the clinics could have complied eventually.
I’m not sure anything Constitutional could eventually stop Mass from doing just that.
Really? The requirement that banks participate in FDIC deposit insurance sure is a regulatory mandate. The Justice Department is using this requirement as the “choke point” by which they can strangle undesirable businesses. It seems like the definition of using regulation to achieve an end which would be unattainable by legislation or normal politics.
They’re pretty huge exceptions. Exceptions so huge that both the number of abortions and the abortion rate have plummeted in the past 3 decades.
Only by hugely increasing prices charged to customers for negligible benefit while growing a government bureaucracy for the sake of ensuring compliance with the pointless regulations.
That’s the definition of something conservatives should oppose.
We should let them, then?
Sure, participating in FDIC is mandated already. But forcing banks out of FDIC for having certain otherwise legal customers is not – that part is not a power granted anywhere by Congress to the executive. Further, OCP never went through the normal process for creating regulations, it was implemented by various advisory letters. It is not legal, it is outright bullying and blackmail by fiat.
Did I argue that?
Is bullying and blackmail by legislative fiat somehow preferable? I’m really failing to see a meaningful distinction.
I would also quibble about the sort of power that Justice via the FDIC has. The various Cabinet-level agencies have pretty broad latitude in how they operate. This is especially true given that Congress has essentially offloaded all enforcement and fine-grain detail of legislation to the Executive branch via the device of Administrative Law and numerous “The Secretary shall decides” within various acts. I can’t recall how many times that phrase or something like it appears in Obamacare, but it gives the HHS Secretary tremendous power. I have no doubt that the Treasury Secretary and AG have similar capacity under the aegis of their legal domains.
No, but I am asking. It seems as if you’re being somewhat coy in this situation as opposed to my hypothetical Massachusetts example because you like the aims and the outcome of the situation in TX. Do the ends justify the means?
From the point of view of challenging the actions, the distinctions are huge. As they are from the point of view of rule-of law.
The feds have long sanctioned banks for doing business with actual illegal businesses like drug dealers, and have been given some legislative cover for doing so. Payday lenders and firearms dealers are not illegal businesses, and never have any executive agencies been given power, by Congress, to declare them otherwise and thus treat them as they would treat drug dealers.
I think this analysis is dubious. The abortion case was about making safety requirements for a specific medical procedure. The Operation Choke Point is about a burden on lenders for types of businesses. I don’t think the two will equate in the minds of the justices. I’m just not seeing it. Sotomayer, Ginsberg, et all, will see what they want to see. One should not make the mistake of believing that law has consistency.
Depends on the ends and the means, doesn’t it? I’ll not make a blanket statement.
But just as you are concerned with legislative or regulatory overreach, you should be equally concerned with judicial overreach on these matters, and with special judicial protection given to some business types over others.