By a unanimous vote, with Chief Justice John Roberts writing the majority opinion and Justice Samuel Alito (joined by Justice Elena Kagan) and Justice Clarence Thomas writing separate concurrences, the Supreme Court today affirmed the “ministerial exception” which prevents federal agencies and courts from second-guessing churches’ decisions on who to hire and retain as teachers, leaders, and ministers. The Obama administration had taken the disturbing position that there should be no ministerial exception at all to stand between churches and the full panoply of official employment regulation, though it acknowledged that constitutional freedom of association might afford churches some autonomy. I wrote about the case last fall and Notre Dame’s Richard Garnett has an early account of today’s decision at NRO “Bench Memos”.

Michael and Chantelle Sackett bought some Idaho land and began placing gravel fill on the site to prepare for laying a foundation for their dream home. Then they got something from the EPA: a “Compliance Order,” declaring that they were in violation of the Clean Water Act, because their land had been deemed a “wetland” subject to federal jurisdiction.

By beginning construction without a federal permit, the Sacketts were breaking the law and exposing themselves to civil and possibly criminal penalties, according to the Order. The Order instructed them to stop their construction and restore the property to its “original state” — it even told them what type of shrubbery to plant on the site, and exactly where to plant it. If they failed to comply with the order, they were subject to $37,500 fines per day.

The Sacketts were, understandably, shocked: they had no reason to think their property was a wetland; their neighbors had been allowed to build homes, and there was no indication in their title documents that the land was subject to federal control. So they asked for a hearing — and that was when they learned that the Compliance Order process does not entitle them to a hearing. They must either comply with the Order immediately to avoid the fines, or play chicken with the EPA — waiting until the EPA decides to file an “enforcement action.” At that time, they would be allowed to present their arguments that the land is not actually a “wetland.” But of course, by that time, the fines would have accumulated to hundreds of thousands or millions of dollars.

Worse, these Compliance Orders are issued by a single EPA bureaucrat, on the basis of “any evidence.” That’s the language of the statute itself — and federal courts have interpreted “any evidence” to mean even an anonymous phone call or a newspaper story.

And a Compliance Order doesn’t just demand that you obey EPA’s orders or face fines — ignoring a Compliance Order is a separately punishable offense against federal law, aside from the liability for any environmental damage. In other words, you can face penalties for violating the Clean Water Act and also for ignoring a Compliance Order. Worse still, ignoring a Compliance Order can serve as the basis of a finding of “wilfulness,” and thus the basis of criminal charges.

Pacific Legal Foundation represents the Sacketts and argues that they should have their day in court — either under federal statutes like the Administrative Procedure Act or under the Due Process Clause — without having to face the possibility of devastating penalties. PLF lawyer Damien Schiff argued the case today before the Supreme Court; while the justices were active in probing the weaknesses of both sides, the government’s lawyer didn’t do the EPA any favors. So today may have ended being a very good day for the Sacketts, even if the New York Times editorial page took the alarmist stance that allowing them to seek pre-enforcement judicial review would be a “big victory to corporations and developers who want to evade the requirements of the Clean Water Act.”

The case is Sackett v. EPA; read the argument transcript here and the briefs here.

This blogpost was coauthored by adjunct scholar Timothy Sandefur, who is a principal attorney at PLF and wrote about the case in Regulation magazine.

You may have taken time off from work last month, but the federal Equal Employment Opportunity Commission (EEOC) was quite busy. As the Bureau of National Affairs and the Washington Times report, it posted to its website an informal advisory letter that has been getting a lot of businesspeople’s attention. To quote the BNA:

“[I]f an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma,” EEOC said.

Further, to satisfy the ADA, the employer must show that a job applicant with a disability cannot perform the job’s essential functions with or without a reasonable accommodation, even if he or she does not meet a standard that is job-related and consistent with business necessity, the commission added.

Employers require high school diplomas as prerequisites for many jobs. Yet if the matter gets to court, it can be quite expensive and cumbersome for them to establish that such a screen is “job related and consistent with business necessity” — necessity being of course a legal term of art.

Some suggest the policy is not all that new or special since the EEOC has long taken the position that diploma requirements must be “job related and consistent with business necessity” if they serve to screen out members of minority groups less likely to have graduated from high school. But diploma requirements aren’t actually challenged very often on racial-impact grounds, perhaps because correlations between ethnicity and high school graduation rates are shifting and contingent. The new wrinkle this time — that the protected group are the learning-disabled themselves — makes a big difference. The diploma’s very purpose, after all, is to signal that its holder has achieved a level of proficiency that some with severe learning disability will find forever out of their reach.

“If I were hiring a janitor,” notes columnist Amy Alkon, “I’d need that janitor to be able to read the back of bottles of chemicals.” But it’s growing ever clearer that the point of the game is to attack employers precisely for wanting to hire candidates of ability.

The Obamacare litigation has arrived on the big stage: the Supreme Court. The first opportunity for those opposing the legislation to weigh in comes on the issue that will be the last one the Court considers, “severability.” That is, if the individual mandate is struck down as unconstitutional, what (if any) of the rest of the law must fall with it?

On one hand, even in the absence of a severability clause, the Court should avoid striking down an entire law when only one small part is declared unconstitutional, particularly if the remainder of the law is unrelated to the defective bit (imagine an omnibus spending bill). On the other, the Court cannot go provision-by-provision and execute some sort of judicial line-item veto (creating a new law completely unrecognizable from what Congress enacted).

Many think that the rules in this area are unclear, but the analysis boils down to two questions:

1. Can the remainder “fully operate as law”?
2. Would Congress have passed the remainder?

In our brief, joined by the Texas Public Policy Foundation and co-authored by Prof. Richard Epstein, we examine these questions with a focus on Titles I and II of the law, which contain all the key provisions relating to Obamacare’s fundamental transformation of the national health care system: the requirement that insurers cover people with preexisting conditions (“guaranteed issue”), the requirement that premiums be assessed by a “community rating” formula, the creation of state insurance exchanges, Medicaid expansion, premium supports, etc.

Put simply, knocking out the individual mandate renders this whole package inoperable; the brave new health care world would not work as a matter of basic economic principle. As policy experiments in various states have proven, without an individual mandate, guaranteed-issue and community-rating provisions foster a “death spiral” because healthy people wait until they get sick or injured before buying under-priced insurance that they cannot then be refused, causing premiums to increase and costs to explode. The individual mandate is thus so interwoven with other crucial provisions that it cannot be excised without destroying the entire Obamacare structure.

Appreciating this mechanism, the government has conceded that guaranteed-issue and community-rating are indeed inextricably tied to the individual mandate—it has to, given its constitutional claim that the mandate is a necessary means of implementing a lawful regulation of interstate commerce. But a close analysis of the law reveals that the interoperability goes much further. And Congress knew this; there is no way it would have otherwise passed this law.

Thus, to aid the plaintiffs’ arguments regarding broader non-severability, our brief shows that the individual mandate is so central to the overall legislation that if it falls, those key Titles I and II must go with it.

The Court will consider the severability question for 90 minutes on March 28, the last of the three consecutive days it hears oral argument in the Obamacare cases.

Gordon Hirabayashi died on January 2, at age 93.

The Washington Post obituary notes that the federal government put him in a prison during the 1940s. President Franklin Roosevelt issued many decrees, but the one that would lead to Hirabayashi’s imprisonment, Executive Order 9066, said that thousands of Americans residing on the West Coast had to leave their jobs and homes and promptly report to certain prison camps (“relocation centers”). The feds said actual proof of wrongdoing was unnecessary.

Hirabayashi refused to go along with the program, so he was prosecuted for disobeying the president and jailed. The courts rejected his argument that FDR had exceeded the powers of his office. In an interview in 1985, Hirabayashi looked back on his ordeal and said, “My citizenship didn’t protect me one bit. Our Constitution was reduced to a scrap of paper.”

Even though there are written safeguards concerning due process, habeas corpus, and jury trial, presidents will sometimes assert the power to override all that. FDR did it. George W. Bush did it. And Barack Obama wants to reserve the option to do it.

On January 17, Cato will be hosting a book forum about FDR’s war policies and civil liberties.

For related Cato scholarship, go here and here.

A debate over Obamacare between me, Cal-Irvine law professor (and dean) Erwin Chemerinsky, and Demos’s Anthony Kammer is currently ongoing at Pol​i​cyMic​.com. Below is my initial post, but the debate continues in the comments section. If anyone is so disposed, I invite you to join the conversation.

Congress has limited, enumerated powers under the Constitution. One of those is to regulate interstate commerce, which means ensuring that commerce flows easily between the states. Although the Supreme Court has expanded that regulatory authority to reach local economic activity that, in the aggregate, has a “substantial effect on interstate commerce,” Congress still lacks the power to compel citizens to enter into commerce for the purposes of regulating them—which is what the Affordable Care Act’s “individual mandate” does. Moreover, the penalty for not complying with the mandate is not a tax and, if it is, it is an unconstitutional one because it is not apportioned by population. That point is especially noteworthy because the individual mandate was passed in part to avoid the political accountability that raising taxes would have brought.

Those are my claims. But I’m going to concentrate my initial thoughts in the clouds, so to speak, rather than the weeds. I begin with a crucial point: enforcing limits on governmental power—especially Congress’s commerce power—is not and never has been about discovering limits to the power. Instead, it is about defining and enforcing those limits. Since the landmark commerce power cases of the late ’30s and early ’40s, however, the Supreme Court has largely treated the limits on federal power as detectable rather than definable. Those cases looked at our system of commerce as a pond and Congress’s power as extending over the ripples caused by disturbances on the surface. And if the effects of a single water bug or pebble were not detectable enough, we were told to imagine the combined effects of all those water bugs or pebbles.

That theory differs from how the Court looked at the commerce power before the New Deal, when Congress’s power was limited by type rather than degree. In other words, activities such as “manufacturing” were deemed off-limits to Congress not by virtue of the effects they had on interstate commerce—the ripples in the pond—but by virtue of the type of thing it was. Even though it produced items for commerce, manufacturing was local in nature, so Congress had no power to regulate it. Thus limits were articulated, rather than discovered.

Although many people thought that the Supreme Court abandoned this line of thinking during the New Deal, the Court reaffirmed that type-versus-degree distinction in the 1995 case of United States v. Lopez (followed in 2000 by another similar case). In Lopez, the Court struck down the Gun-Free School Zone Act not because guns in school zones don’t cause sufficient ripples in the national commercial pond, but because a gun law is fundamentally different from a commercial regulation. Indeed, the Framers knew that, if conceived broadly enough, everything has an effect on commerce. The ripples in the pond can affect the sand on the shore and even the animals on the land. Unless a distinction is drawn between the sand and the water—or, to leave that analogy, between buying something and not buying something—Congress’s power is unlimited.

With the individual mandate, we also distinguish power by kind rather than degree. Not only is the decision not to buy insurance not commerce, the idea that such a decision falls under Congress’s regulatory authority because it affects commerce is dangerous precisely because it is correct: of course decisions not to buy something affect commerce (indeed, any decision, action, or inaction ultimately affects commerce). Giving the government the power to regulate those decisions removes all limits on federal power.

Today POLITICO Arena asks:

Did Obama have the authority to make the Cordray and the NLRB appointments, since the Senate is technically not in recess? And will the president’s shift from bipartisan conciliator to partisan agitator pay off?

My response:
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor — ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.

But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’ ” A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.

So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.