Religious rights may bring “nullification”

Two Native Americans, fired from their jobs at a rehab center because their blood tested positive for mescaline, applied for unemployment benefits.  Despite explaining the drug resulted from their religious use of peyote, they were rejected.

They sued the state of Oregon, and their case went to the U.S. Supreme Court.  Though it recognized the religious use of peyote by some Native Americans, the court rejected their appeal.  It said benefits would be denied to anybody with mescaline in their blood, so the Indians were not subject to religious discrimination.

The Court’s decision relied on a standard that had evolved over decades, allowing religious beliefs to be overridden, so long as the law applied equally and did not target certain religions.

When members of Congress learned of this case, virtually all of them agreed that this interpretation of government power went too far in denying religious rights.  So, in 1993, Congress almost unanimously adopted the Religious Freedom Restoration Act.

Under this law, there must be a “compelling government interest” that justifies overruling religious practices.  Mere neutral application of a law was no longer enough.

The general effect of the new law was to “restore” (hence the use of the word “restoration”) an older Supreme Court decision and invalidate the later interpretation that made it easier for government to overrule religious beliefs.

Congress also said that this requirement would apply to actions by both federal and states governments.  In 1997, the Supreme Court ruled that the constitutional provision allowing the federal government to impose standards on states did not cover this law.

A state could pass its own version of this law to ensure that its government accorded the same respect to religious belief as the federal government.  Some, but not all, states enacted such laws.

Religious freedom is guaranteed in the First Amendment to the Constitution.  Like other protections of the Bill of Rights, it is a right to be free from excessive government interference.  As matters now stand, government can only impinge on religious rights if there is a “compelling government interest” – an interest higher than unfettered religious practice.

The law came before the Supreme Court again in the Hobby Lobby case.  Hobby Lobby is a company owned by just a few people, whose religious belief opposes abortion.  They did not want to provide abortion coverage in their health insurance program or even to tell employees where else they could get such coverage without charge.

In 2014, the Court said that, because the employees could get the coverage, the company should not be forced to provide it or inform them of its availability.  In other words, there was no “compelling government interest,” because an alternative existed that left the owners’ religious beliefs untouched.

Since the adoption of RFRA, some have interpreted it to mean they could refuse to obey any law they claimed was contrary to their religious belief.  They would not have to seek judicial approval for their action.  The government would have to take them to court if it thought they could be forced to act because of a significant government interest.

To some, this development opened the door to “nullification,” the ability of people to refuse to obey the law, simply because they asserted a conflicting religious principle.  Thus, RFRA became part of the arsenal of weapons to be used by people who thought government had become too powerful.

The underlying conflict emerged when Indiana passed its own version of the law.  The state has no anti-discrimination law and hence no resulting “compelling government interest,” as do the United States and most other states, allowing it to limit a claim of religious rights. 

Opponents charged Indiana had enacted a license to discriminate and to resist government.

Gays and lesbians protested against the Indiana action.  Some national and state Republican leaders stated clearly that the purpose of the law was to allow businesses to deny at least certain services or products to homosexuals.

After a national outcry, in which major businesses opposed the new law, Indiana retreated and modified the law to ensure it could not be used to discriminate against LGBT.

Still, what had happened in the 22 years since the law was adopted was that it had shifted from a limit on government to a new right for individuals to refuse to obey the law.

Some states are considering simply refusing to apply federal laws they do not like.  RFRA may be the beginning, not the end, of new battles over “nullification,” the way to destroy or drastically limit federal government authority.

Obama touts success, gets opponents' disdain

President Barack Obama, with more than a year and a half remaining in his second term, has begun taking his “victory lap,” according to the political insider media.

Not waiting until his last days in office, the president has begun touting his most important accomplishments.

He reminds us that he found high unemployment and an economy falling into deep recession when he entered office, but now the country has normal levels of joblessness and is experiencing sustained economic growth.  Justifiably, he gives some of the credit for the recovery to his stimulus program.

The much heralded “signature” accomplishment of his administration is said to be the Affordable Care Act, which he accepts being called “Obamacare.”  He points out that more than 16 million Americans have gained health insurance as a result of this program.

These are significant accomplishments, and Obama can fairly claim that his administration is responsible for pushing both of them against tough opposition.

But Obama’s “signature” accomplishment is not Obamacare.  It took place in January 2009, when he was inaugurated as president.  For the first time in modern world history, a major power elected a person from a racial minority to head its government.

That was why Obama received the Nobel Peace Prize during his first year in office.  The Nobel committee’s announcement said, “Only very rarely has a person to the same extent as Obama captured the world's attention....”  The award was essentially to him for his achievement in being elected and to the U.S. for setting an historic example by electing him.

Though his election was historic, too much can be read into it.  Like all other Democratic presidential candidates since the 1960s, he won the support of only a minority of white voters.  In some ways, his election was less significant in terms of white sentiment than it appears.

Its true significance may have been in showing that the U.S. was becoming a multi-racial nation in which “people of color” would soon come to outnumber the traditional white majority.

Like all presidents, Obama must await the judgment of history, but he already suffers from the greatest disrespect of any president in memory.  Setting aside claims that he is a communist or a Nazi or a dictator, there are three reasons why he is treated so badly by his political opponents and so distantly by his own party: race, conservatism and himself.

Increasingly, political observers are willing to say the lack of respect for Obama shown by congressional Republicans is based on a lack of respect for African Americans.  House Speaker John Boehner’s invitation to Israeli Prime Minister Benjamin Netanyahu without discussing it with Obama is the clearest case of such disrespect.

The letter by 47 Senate Republicans, but not Maine Sen. Susan Collins, to Iran, America’s adversary, in which they explicitly undercut the president shows similar deep-seated disloyalty.  Like Boehner’s invitation, the letter was meant to tell the world it need not respect the American president.

Actions like these would not have happened previously when the White House and Congress were dominated by different parties, making it is possible to conclude that the only difference between then and now is the president’s race.

Another fundamental reason for opposition to Obama comes from recent political history.  When Ronald Reagan was elected president in 1980, conservatives saw his victory as the beginning of their era in political control of the U.S.

The elections of Bill Clinton and Barack Obama, both two-term presidents, interrupted the plan for long-term rule by conservatives.  A failed attempt was made to remove Clinton, seen as the usurper of the conservative regime, by impeachment and conviction.  Though responsible for unforgivable indiscretions, Clinton would have been punished for his politics not his behavior.

Having failed once, the congressional Republicans would not try impeachment and removal of the president again when it came to Obama.  Instead, they have simply attempted to seize the powers of the presidency for themselves.  Only their fear of being labeled “the party of ‘no’,” makes them cooperate with him occasionally.

Finally, Obama created some of his problems.  In successive elections, he had expected congressional Democrats to defend him rather than he himself making the case for his policies that they could then support.  Lacking his leadership, many of them ran away from him.

 
He has not been a strong and consistent advocate of his own policies, and his efforts now to publicize his successes may be an attempt to repair the damage.  In his last 18 months in office, he still has the chance to provide stronger leadership.

Judges, regulators often political, not neutral

Should presidents and governors select judges and regulators based on their political views?  Should they be able to direct their appointees in making decisions?

The answer to the first question seems obvious.  Because the elected chief executive is given the constitutional right to pick those who judge, a president or governor must be expected to select people sharing their political views.  That should make it unnecessary as well as unlawful to give them orders.

These days, decisions of a multi-judge federal court are usually accompanied by reports about the justices and the president who appointed them.  It is newsworthy when one party’s appointee votes with justices named by appointees of the other party.

Only one president appointed all the federal judges – George Washington.  He favored a strong central government, and it is likely all his appointees did as well.

Though he named political friends to the bench, he undoubtedly assumed that, because they formed the third branch of a government with checks and balances, they would be independent of his control.

And it did not take his appointees long to overturn decisions made by John Adams, the second president and Washington’s fellow Federalist, and assert the Supreme Court’s right to declare laws unconstitutional.  In one stroke, the Court asserted its independence from the executive and legislative branches.

While presidents and governors occasionally select judges and regulators based on their nonpartisan and independent wisdom or expertise, we have grown accustomed to courts and regulatory bodies looking increasingly like small and highly partisan legislatures.

Because most major federal cases pass through one of the regional courts of appeals and the Supreme Court, the political origins of their justices can matter.  Right now, a majority of these judges, though not on the Supreme Court, are Democratic appointees.

Most cases don’t involve ideological or political issues.  The public hears nothing about them.

Sometimes, even at the district court level, the lowest level in the federal setup, partisanship can crop up.  A political decision by a district court judge, who sits alone and not on a panel, can set the stage for partisan appeals.

Take the recent district court decision in south Texas, which overruled President Obama’s measures allowing some illegal immigrants to stay in the United States.

The case had been brought by Texas and many other states, including Maine.  They picked a district where the judge was known to oppose efforts to relax immigration constraints.

That’s called “forum shopping,” and, not surprisingly, the states won the first round of their case.  There’s no doubt the case will end up at the U.S. Supreme Court, where Republican appointees outnumber Democratic picks by five to four.

Sometimes, the political lineup indicates the outcome.  But not always.  Take Obamacare, where the Republican-appointed chief justice voted with the Democratic appointees to save the law.

Partisanship also crops up in regulatory matters.  The recent decision by the Federal Communications Commission to ensure equal access to the Internet and block preferential use for those who pay for it was only possible because a straight party-line vote.  The three Democrats outvoted the two Republicans.

In Maine, a recent decision by the Public Utilities Commission has raised the same kind of issues.  Electric customers are taxed to support energy efficiency efforts.  Was the tax supposed to be levied based on the full cost of electricity or only on the cost of the wires, the part of the cost regulated by the state?

The full cost approach would raise more money, probably the legislative intent.  But the words themselves clearly based the tax on wires alone.  This is a classic case, where language and intent may differ, and courts or regulators must decide.

Two PUC members, appointees of Republican Gov. Paul LePage, opted for the exact language and the third member, named by former Democratic Gov. John Baldacci, favored legislative intent.

Some critics saw the majority doing LePage’s bidding.  That’s undoubtedly unfair, but was probably raised because LePage has intervened inappropriately with other independent state bodies.  In this case, the majority decision was independent and defensible.

Incidentally, the exact same issue – language versus intent – has been before the U.S. Supreme Court in its consideration of whether Obamacare premium subsidies for the insured can be paid in states not having their own insurance exchanges. 

In the end, there’s only one way the political orientation of most judges and regulators can be influenced by the people – at the ballot box, by considering key appointments in voting for the president, the governor or legislators.  That’s seldom done by voters.

Policies suffer from leaders’ style -- weak or strong

Style matters in politics.  Political style is a matter of how politicians lead.

It is possible to suffer as a leader by showing too little personality or projecting too much.

President Barack Obama is a clear case of keeping his light under a bushel.  Because of projecting little or nothing of himself as a strong leader, he makes himself and his policies vulnerable.

Take Obamacare.  After several presidents failed to achieve a program to provide health care coverage to millions, Obama took advantage of a momentary, overwhelming Democratic majority in Congress to gain the passage of a national health insurance plan.

The program was passed without a single Republican vote and immediately came under attack.  The GOP realized that it could make an issue of Obamacare, because its complexity would allow Republican candidates to pull out touchy issues and attack them.

In the 2010 congressional elections, the GOP campaigned against Obamacare, but Obama was nowhere to be seen in defending it.  Since then, he and his party have done little to campaign in its support.

A couple of weeks ago, the nonpartisan Congressional Budget Office announced that Obamacare would cost 11 percent less than originally forecast.  That’s because health insurance premiums are rising more slowly than foreseen.

Have you seen the Democratic television ads touting the millions of increased signups and the decreased cost?  Of course not, because they have never been produced or aired.  The result is that Democrats, lacking Obama’s support, sometimes run away from the program.

The Republicans have been successful in turning majority opinion against Obamacare, because it lacks the president’s vigorous and persistent defense.  He did not mention it once in this year’s State of the Union address.

In foreign policy, Obama has provided massive aerial support in the conflict against the Islamic State.  The American contribution has been critical in turning back the tide of the terrorist advance.

But he has done little to wave the flag demonstrating to Americans and allies that the United States is committed to defeating the Islamic State and that it leads a coalition making real progress on the ground.

Oddly enough, he walks the walk but doesn’t talk the talk, just the reverse of many public figures.  That opens the door for unfounded claims he doesn’t love America.

Obama has also fallen short in the easiest of leadership responsibilities – directing his own troops in Congress.  He has difficulty in building support among Democrats, because he takes what seems to be a hands-off approach to dealing with them on key bills.

The president comes across as a cool intellectual in a country yearning for a leader to provide a national rallying point.  Many people believe that a strong country demonstrates its power through the governing style of its leader.  Obama’s style undermines that sense of leadership.

If Obama’s style is too restrained, Maine Gov. Paul LePage is just the opposite.

Unlike Obama, he does not want the Legislature to operate independently, but treats it as if it is meant to be subordinate to the governor.  He more often bullies it rather than cajoling it into supporting his proposals.

Increasingly, observers wonder if he recognizes the difference between being the chief executive officer of a private corporation, which he was, and only the head of one branch of state government.

Take his recent tax reform proposal.  It is a bold, new look and includes at least some changes worth considering.  Like virtually any other government proposal ever made, it won’t gain enough support to be adopted exactly as presented, but, through compromise, some key elements could be enacted.

Instead of working with legislators to fashion compromises that could advance his ideas, LePage, obviously believing his electoral victory last year gives him extraordinary powers, threatens to campaign against legislators, including those of his own party, who do not go along with him.

That stance could poison the political atmosphere, undermining both his proposals and public confidence in state government.

Because of a relatively minor difference of emphasis with the immensely successful head of the state community college system, LePage threatened to withhold necessary funds for the colleges unless their leader was ousted.  The governor won.

And he forced the Legislature to break an approved deal with Statoil, one of the world’s largest corporations.  He was willing to use unusual and short-sighted political clout to sacrifice the state’s drive for new business investment.

Somewhere between Obama and LePage, there’s a political style needed both to build public confidence in government and promote respect for its leaders.