Black robed social justice warriors.
Via NRO:
It’s déjà vu all over again. A federal judge has blocked a lawful Trump-administration policy, essentially enshrining the Obama administration’s policy choices in social-justice granite. The practical result is a judicial equivalent of a one-way ratchet. The pattern is clear:
Step One: The Obama administration uses its executive power to implement a progressive policy (such as DACA or the contraceptive mandate).
Step Two: The Trump administration uses its executive power to repeal the Obama-administration action and implement a more conservative policy.
Step Three: Progressive plaintiffs file suit in a friendly jurisdiction using dubious legal theories to seek a broad injunction against the Trump-administration action.
Step Four: Progressive judges join the #Resistance, write obviously flawed opinions, and seek to freeze Obama’s policies in legal amber.
The latest example came yesterday, when Judge Haywood Gilliam of the Northern District of California blocked implementation of the Trump administration’s religious and moral exemptions to the Obama administration’s contraception mandate. This time, mercifully, the order wasn’t a nationwide injunction. It applies to the 13 states (and District of Columbia) before the court, but it’s important nonetheless. The religious liberties of employers in those jurisdictions are once again placed in jeopardy.
The opinion itself was everything we’ve come to expect from Trumplaw, defined as the crafting of new judicial standards for the sake of defeating Donald Trump. The Affordable Care Act did not, by its plain terms, contain a contraception mandate for employers. As the Supreme Court explained in Burwell v. Hobby Lobby, the statute required “an employer’s group health plan or group-health-insurance coverage to furnish ‘preventive care and screenings’ for women without ‘any cost sharing requirements.’” Congress, however, “did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision.”
In plain English, that means that the contraception mandate was at heart a regulatory mandate. Congress made an express delegation of its lawmaking authority (which is problematic on its own terms, but that’s a topic for a different day). The mandate was therefore a creation of the executive branch, and its contours are thus defined by the executive branch. The Trump administration has left the Obama regulatory mandate largely intact, but it has slightly expanded the employer moral and religious exemption in a manner it believes is consistent with the requirements of the Religious Freedom Restoration Act.