The firestorm of controversy over the January 20th HHS mandate requiring Catholic and other religious organizations to pay for contraception, sterilization and abortifacient drugs for their employees shows no sign of abating. This is notwithstanding the Obama administration's "accommodation," announced last Friday, that will permit insurance companies to pass the cost of contraception, sterilization and abortifacient drugs along to Catholic and other religious employers - as long as they do so surreptitiously, of course.
Catholics bishops and countless others have characterized this regulation as direct government interference with the free exercise of religion and thus unconstitutional. In this, they are correct.
Where many critics and commentators lapse, however, is in viewing this recent power grab by Obama as an aberration, a surprise, or a betrayal. It is no such thing.
It is not merely that Obama is disdainful of religious faith - though he clearly is, save when he can appeal to it as a call for higher taxes. He is not singling out Catholics, or Christians generally, or even the First Amendment. It is that he has no respect for any of the rights in the U.S. Constitution. Or, to put it more specifically, he has no respect for the structure of the United States Constitution, nor any intention of acknowledging the limits to government deliberately drafted into it; limits that are a function of the rights the Constitution expressly identifies as inherent in human beings generally and vested (at least by virtue of this document) in American citizens in particular.
Obama has made this clear from his earliest forays into public office. I warned of this in 2008, before he won the presidential election, but perhaps with three-plus years’ worth of hindsight, it is worth reviewing. In a Chicago public radio interview in 2001, then-Illinois State Senator Obama expressed his discontent with the limits of the Constitution, complaining that is only “a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.” He went further, stating that the U.S. Supreme Court under Chief Justice Earl Warren was not “that radical” because it “didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution…” and expressing his opinion that neither “redistribution of wealth” nor “major redistributive change” was likely to come through the court system; leaving only the option of legislation, or administrative fiat.
Thus it should come as no surprise that he treats the rights enshrined in the First Amendment as inconveniences to be dispensed with when they conflict with one of his deeply-desired policy objectives.
And if we were speculating in 2008, in 2012 we now know that that is, indeed, the way he views things. The New York Times reported last week that, with respect to the HHS mandate, "In the end, it was Mr. Obama himself who made the decision … calculating that at the end of the day, the issue of public health access outweighed the concerns of the religious institutions."
This is a statement that is both telling and breathtaking in its arrogance. The “free exercise” of religion is expressly written into the Constitution. "Public health" is not. No matter.
Freedom of speech is likewise dispensable. In what should be viewed as a chilling precursor of events to come, Catholic chaplains in the U.S. Army were forbidden to read the letter from the Catholic Church's military archbishop in which he criticized the HHS ruling.
These are not isolated instances, nor is the First Amendment the only impediment to the President’s personal objectives. The Justice Department and the Bureau of Alcohol, Tobacco and Firearms are under congressional investigation for the "Fast and Furious" covert operation whereby arms were deliberately sold to Mexican drug dealers. Memos obtained in late 2011 show ATF's intent to use those same gun sales to support erosion of Second Amendment rights and imposition of more gun control legislation.
On January 4th of this year, President Obama named Richard Cordray to head up his new Consumer Financial Protection Bureau, and three other individuals to vacancies on the National Labor Relations Board, without U.S. Senate confirmation, and without the Senate being in recess, in violation of the Appointments Clause of the Constitution. According to numerous news outlets and sources within the White House, the President declared that he, and not the United States Senate would decide when the Senate was, in fact, in recess.
During the 2009 bailouts of U.S. automakers GM and Chrysler, the President ran roughshod over contract and even bankruptcy law, subordinating the prior contract rights of senior bondholders to unionized employees, in a political payback for the millions of dollars unions had contributed to Obama's presidential campaign. (To make matters worse, and in what we now know is his typical fashion, Obama castigated those attempting to assert their legal rights as "profiteers.")
And then there is the Patient Protection and Affordable Care Act itself. Critics raise at least two primary objections. The first is that nowhere does the Constitution give Congress the power to compel American citizens to engage in any commercial transaction, such as buying insurance. Second – and more insidiously – we argue that the Act by its very structure creates incentives and methods for impermissible overreach into what must be the most sacrosanct, private decisions in people’s lives; those which must be free from government coercion.
With the HHS mandate, Obama has handed the opponents of Obamacare one of the best weapons in favor of repeal. No longer are we speculating about what infringements of liberty Obamacare will produce. No longer are we hypothesizing about how Obama’s interpretation of the U.S. Constitution will manifest itself. Now we know.
This conflict will not be resolved anytime soon. Many of the Catholics who voted for Obama did so in fidelity to a Catholic tradition of supporting civil rights. Indeed, the President Emeritus of the University of Notre Dame, Father Theodore Hesburgh, is often featured in a famous photo, hand-in-hand with Martin Luther King, singing “We Shall Overcome.”
No wonder Catholics were proud, years later, to support America’s first African-American President.
No wonder they are shocked to discover that it is now his policies they must overcome.
Laura Hollis is an Associate Professional Specialist and Concurrent Associate Professor of Law at the University of Notre Dame, where she teaches entrepreneurship and business law. She is the author of the forthcoming publication, “Start Up, Screw Up, Scale Up: What Government Can Learn From the Best Entrepreneurs,” © 2014. Her opinions are her own, and do not reflect the position of the university. Follow her on Twitter: @LauraHollis61.
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