This Presidents’ Day, President Obama offered Americans a reminder of the threat modern executive power poses to individual liberty.
A vigorous national debate erupted in recent weeks in response to the President’s approval of a Health and Human Services (HHS) mandate, which would require all health insurance plans to cover contraceptives, abortion-inducing drugs, and sterilization at no cost to the patient.
Feminist groups praised the President for endowing women with unimpeded access to contraceptives, regardless of their income. However, because the mandate would require all employers, including religious institutions such as Catholic hospitals, private schools, and faith based community organizations, to offer full coverage despite their religious beliefs concerning contraception, the Roman Catholic Church immediately flagged the mandate as a violation of their freedom of conscience. Much of the public and Members of Congress, including many Senate Democrats, criticized the mandate as an assault on religious freedom.
Thus, from its inception, the debate has been defined in terms that have directly pitted feminists against the Roman Catholic Church. In an effort to appease both groups, Obama offered a virtually meaningless accommodation to religious institutions, which would shift the technical requirement to provide free contraception to insurance companies so that religious institutions are not explicitly paying for it.
In actuality, no accommodations, however substantial, will alleviate the real threat posed by the mandate.
What is most significant about the mandate is not so much that the President has violated the religious liberty of a particular group, in this case, most notably Catholics, but that he has exposed the tenuous foundation on which the liberty of all Americans, male and female, now stands.
James Madison, the Father of the Bill of Rights and author of the First Amendment, rightly noted the interconnection of liberty and rights generally. In an essay entitled “On Property,” Madison contends that the right to property is a comprehensive right which “embraces everything to which a man may attach a value and have a right; and which leaves to everyone else the like advantage.”
Madison concludes that the right to property is fundamental to liberty because it extends not only to a man’s “land, merchandize, or money,” but also to “his opinions and the free communication of them,” as well as “his religious opinions,” and “the profession and practice dictated by them.” Thus, the right to freedom of conscience is merely one aspect of the individual’s broader right to property. Madison warns that “[w]here an excess of power prevails…no man is safe in his opinions, his person, his faculties, or his possessions.”
In this sense, the President has shown a blatant disregard for the individual right to property, and hence liberty in general, by dictating how all employers, non-religious and religious alike, must spend and invest their own money, regardless of their personal beliefs or opinions. Furthermore, the President has imposed this sweeping dictate without any deliberation in Congress, the body actually charged by the Constitution with the power to legislate.
Although several members of Congress have pledged to reverse the mandate if the President does not, the President is not entirely at fault for this extensive use of executive authority. Congress, in fact, shoulders much of the blame. While the Constitution vests legislative power in Congress, Congress has been a complicit party in delegating statutory authority to executive branch agencies.
Such is the case that led to the current mandate. In passing Obamacare, Congress sought to avoid the troublesome details of the law—which they knew would alarm many, or even most, Americans—so they delegated authority over the specifics to the Secretary of Health and Human Services. That's why Nancy Pelosi proclaimed that we would need to pass the bill to find out what was in it. We are just beginning to discover the truth of her statement, and the sweeping power to micromanage individual behavior that Congress handed over to the Executive branch.
Consequently, in order to truly protect individual liberty, Congress must do more than just repeal the HHS mandate. More importantly, it must stop passing bills that delegate broad statutory authority to the President and his minions. Congress should make it a priority to cease writing blank checks to the executive branch, which allow the President to run roughshod over the rights and liberties of Americans.
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