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I blogged last week about a court’s decision to enter a ex parte TRO, halting a Jewish atonement ritual on the eve of the holiday of Yom Kippur. Beyond the jurisdictional arguments I raised in my amicus brief, the case has serious free exercise clause issues–that could have been avoided by dismissing the case on narrower grounds. This morning, the L.A. Times published my editorial, explaining the case in more detail.  It is titled “Chabad’s ritual is a clear example of the free exercise of religion.”

Every year, Jews around the world seek repentance before the holiday of Yom Kippur through an atonement ritual known as kapparot. In exchange for a donation, a rabbi gently waves a chicken over one’s head, reads a blessing, and then the bird is humanely slaughtered according to the precepts of Jewish dietary laws. Animal rights groups have repeatedly tried — and failed — to stop this ancient ritual. They tried again this year, filing a federal lawsuit in California against Chabad of Irvine, and seeking a restraining order just 12 days before Yom Kippur.

With less than 72 hours left to complete the ritual, U.S. District Court Judge André Birotte Jr. issued an unprecedented order halting Chabad’s and Rabbi Alter Tenebaum’s free exercise of religion. After some intervention from the First Liberty Institute, a Texas-based legal organization that focuses on religious freedoms, the judge dissolved his injunction but at that point it was too late to perform kapparot. And this case is not over; soon the lawsuit will be heard on its merits.

Those merits are nonexistent. The activists are challenging kapparot as an “unfair business practice” that involves “maliciously and intentionally” killing chickens. This argument is flatly contrary to California law, and even worse, it is unconstitutional on its face.

The activists argue, among other things, that because Chabad gets a donation, kapparot is not only a religious ritual but also a “business act.” But faith groups routinely charge fees — large and small — for a ticket to worship services, admission to Bible studies or to light a votive candle. Reading the law in this broad manner would entangle countless spiritual practices with a code designed to prohibit unfair business dealings.

Nor are chickens maliciously killed in the kapparot ritual. California has specifically recognized slaughtering poultry according to the “rules of the Jewish faith … [as] a humane method of slaughter.” After the ritual is complete, the bird can be either donated to the poor for food (if kapparot takes place in a slaughterhouse), or converted to fertilizer. This is in no sense a wanton or cruel act.

Finally, and most importantly, if California law were to be interpreted to criminalize kapparot, it would be unconstitutional. In 1993, the U.S. Supreme Court considered an appeal involving a Santeria church that sacrificed chickens as a form of spiritual devotion. The church challenged a Florida law that prohibited the “sacrifice or slaughter” of an animal if it is killed in “any type of ritual,” but permitted slaughtering animals in “any licensed [food] establishment.” The Supreme Court unanimously ruled that the law violated the 1st Amendment. The exact same act of slaughter was legal if performed in a food establishment, but illegal if performed in a house of worship. Such discrimination against a ritual that “may seem abhorrent to some,” Justice Anthony M. Kennedyexplained, violates the free exercise of religion.

California law generally protects animals from “malicious” slaughter, but not if they are rendered for food, obtained as “game” or used in scientific experiments. It is arguable that the way Chabad of Irvine currently disposes of the kapparot chickens — as fertilizer — is in fact food, albeit for plants not humans.

Even if the reasoning is not entirely persuasive, the court should read the statute in as broad a manner as possible to avoid a conflict with the Constitution’s “free exercise of religion” clause. In any case, if California law permits some forms of slaughter — for hunting or scientific experimentation — but criminalizes the exact same act for a religious exercise, it is unconstitutional, as in the Santeria situation. The government cannot create secular exemptions, but omit religious exceptions.

Critically, neither the California attorney general nor any district attorneys in the state, has ever charged a rabbi for performing kapparot. During oral arguments as Birotte first considered the case, counsel for the activists conceded that no such prosecution has been brought because the government likely believes doing so would be unconstitutional. Exactly.

In recent years, federal courts have been asked to decide very difficult free-exercise cases, such as religious charities seeking exemptions from Obamacare’s contraception mandate. This case, however, is easy: A religious organization wants to continue performing a millennium-old ritual that is lawful in California.

Animal rights activists cannot dictate how Jews exercise their religion. As the Supreme Court recognized nearly three decades ago, “it is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”

Next year, Rabbi Tenenbaum should be free to practice his faith without judicial supervision.

 

 

 

Nearly two months ago, I was interviewed by Houston’s NBC affiliate, KPRC, to discuss Texas’s frequent lawsuits against the federal government. At last, the piece aired.

Here is the video, and the transcript is below.

 

From the environment to transgender issues to immigration, Texas is certainly not afraid to push back against federal regulations that come from the top.

Records from the Attorney General’s Office show Texas has sued the federal government at least 46 times since President Barack Obama first took office.

“If Texas could write in their briefs, ‘Don’t Mess With Texas,’ they would,” said Josh Blackman, constitutional law professor at South Texas College of Law. “I have little doubt that Texas believes that their interpretation of the Constitution is stronger than that of the Presidency.”

That sentiment was clear in 2013, when Gov. Greg Abbott was still Texas Attorney General Greg Abbott.

“My job description has been simplified over the past four years, because what I do is go into the office, I sue the federal government and then I go home,” Abbott said while speaking to a Freedomworks group in Austin in 2013.

Fighting the federal government isn’t cheap. Records obtained by Channel 2 Investigates show taxpayers spent more than $6 million on these cases. The outcome includes eight wins, 12 losses, 17 cases still pending and nine withdrawn.

Blackman said that’s not a bad average.

“When you sue the federal government, you’re playing against the house. You have house odds and you’re likely going to lose,” Blackman said.

Some of Texas’ high-profile wins include blocking the president’s executive order on immigration and the president’s guidance to schools on transgender bathroom policies. Some of the losses include trying to stop the Affordable Care Act and the resettlement of Syrian refugees in the state.

VIEW: Texas v. Federal Government suits filed (please note that the status of many of these cases have changed since KPRC received this document in September. KPRC will continue monitoring these cases and update this story).

“The important thing is fighting the good fight, not necessarily winning,” Rice University political science professor Mark Jones said.

Jones said in addition to pushing back against what Texas perceives to be an overreaching federal government, there is a tinge of politics to some of these lawsuits.

“I think there is political benefit in suing the federal government when that government is run by Barack Obama,” Jones said. “Part of the Republican playbook today is run as much against President Obama here in Texas as against your actual opponent and it’s been very successful in the general election.”

Both Blackman and Jones said congressional deadlock on many issues leaves the door open for lawsuits when the president tries to enact new policy.

“If the states aren’t bringing these suits, it’s very difficult, if not impossible, for a lot of these issues to be resolved by the courts,” Jones said. “It falls to the states as those who can bring these suits in the first place.”

Both men added there is always going to be a natural conflict between Republican leaders in a conservative state and Democratic leaders in the White House.

“In their view, the pendulum has swung too much in favor of federal government encroachment and that has reduced state autonomy to a level that, in their view, is unconstitutional,” Jones said.

Two of the most recent lawsuits came in September regarding President Obama’s rule making more workers eligible for overtime and a plan to give an international organization oversight of internet domain names.

Officials with both Gov. Abbott’s and Attorney General Ken Paxton’s offices declined to comment for this story.

 

During the debate this evening, Hillary Clinton said District of Columbia v. Heller was about a safe storage laws.

You mentioned the Heller decision. And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others. So I see no conflict between saving people’s lives and defending the Second Amendment.

This utterly disingenuous line was not an accident. Her campaign has used this mischaracterization before. I wrote the following in May.

—

An advisor to Hillary Clinton said that Heller was “wrongly decided.” But she has absolutely no idea what the case held.

“Clinton believes Heller was wrongly decided in that cities and states should have the power to craft common sense laws to keep their residents safe, like safe storage laws to prevent toddlers from accessing guns,” Maya Harris, a policy adviser to Clinton, said in an e-mailed statement. “In overturning Washington D.C.’s safe storage law, Clinton worries that Heller may open the door to overturning thoughtful, common sense safety measures in the future.”

The critical, constitutional issue, was whether the District of Columbia could ban the private ownership of handguns. The case in no way affected “safe storage laws.” In fact, the District of Columbia still has safe storage laws in effect.

From the Metropolitan Police Department’s website:

The law requires that no person shall store or keep any loaded firearm on any premises under his control if he knows or reasonably should know that a minor under the age of 18 is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person . . .  Keeps the firearm in a securely locked box, secured container, or in a location which a reasonable person would believe to be secure.

If Ms. Harris is going to criticize a Supreme Court decision, she should have some clue what the case is about.

(I have my doubts about whether such a law is in fact constitutional, but Heller in no way affected such a law).

Update: In Heller, the Court also considered the constitutionality of the D.C. trigger-lock law. This is different from a “safe storage law.”  The Heller Court described the law in this fashion:

District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or
bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.

Under safe-storage laws, guns are to remain operable, but must remain in a secured case or box.

At the time, the only guns that could lawfully be owned in D.C. were certain long guns, or handguns that were owned before the ban went into effect.

For example, Dick Heller owned a firearm from the 1970s, but was not allowed to remove the locks. The instant he removed the lock–even if it were for self-defense–he would have broken the District of Columbia’s law.

Even assuming that Harris simply used the wrong term, her answer lets on more than she would like.To say that the problem with Heller was that it invalidated some sort of safe-storage law, presupposes that a resident of the District of Columbia had a constitutional right to own a gun in the first place. If you adopt the dissent’s view, D.C. could have banned ownership of handguns all-together. The storage law was an added benefit.

One of the most common questions I am asked during Unraveled events is whether the architects of Obamacare intended the law to fail–or unravel–so it would set the stage for single payer health insurance. My answer is a qualified no. The arrogant central planners behind the law sincerely thought that they could make a dynamic marketplace work with just the right amounts of government intervention–they really did. But, they recognized if they were wrong, the only alternative would be national health care. In this sense, Obamacare–not even through its third year–is already unraveling, way aead of schedule.

In a new piece in National Review, I explore this dynamic, and what is likely to come next:

The Affordable Care Act was never designed to be a permanent solution. Obamacare’s architects predicted that the law’s success would prove the government could be trusted to federalize health care, paving the way for a single-payer system. Reality has not been kind to their best-laid plans: Faced with failing exchanges and fleeing insurers, President Obama has urged Congress to “revisit a public plan to compete alongside private insurers.” Make no mistake: This is not a “tweak” or “reform,” but a grudging admission that Obamacare has unraveled way ahead of schedule.

…

MIT Professor and Obamacare mastermind Jonathan Gruber predicted that whether the law succeeded or failed, the end result would be the same. On one hand, Gruber argued that a successful implementation of the ACA would build confidence and support for nationalized health care, assuring liberals that “if you like single payer, then Obamacare has to succeed.” On the other hand, he warned that the ACA was “the last, best hope for private insurance,” and that if it didn’t work, we would “have to rip it up” and “revisit some kind of single-payer system.” Heads I win, tails you lose. (Indeed, through Wikileaks we’ve recently learned of Hillary Clinton’s active supports for a revision that “begins the unraveling of the ACA.”) Unsurprisingly, after only three years, Obamacare is currently spiraling down the latter pathway. In a brief moment of candor, former-president Clinton called the ACA’s collapse “the craziest thing in the world,” and lamented that people who liked their insurance have found their “premiums doubled and their coverage cut in half.” The law wasn’t supposed to implode so quickly. Its success was supposed to pave the way for advocates to enact universal health care in five or ten years, but that didn’t pan out. So now, never letting a crisis go to waste, President Obama and Hillary Clinton are prematurely scurrying to back “a public plan to compete alongside private insurers.”

Read the whole thing, and if you’re inclined, buy a copy of Unraveled 🙂

Lifezette reports on the following email sent from Hillary Clinton, included in the Wikileaks Trove:

On September 26, 2015,  Ann O’Leary, one of Clinton’s advisers, wrote “Madam Secretary – I wanted to be sure you saw this memo on the cadillac Tax.” The timing of this email is quite important. As I recounted on this blog, and in Unraveled, during the fall of 2015–after King v. Burwell settled the legality of the ACA’s core–Democrats began to publicly oppose the Cadillac Tax.

On September 21, The Hill reported that Clinton will come out against the Cadillac Tax. However, in a speech on September 24, Clinton did not say anything about the Cadillac Tax. She was still “examining” it. But by that point, Senators Schumer and Sanders, among others, publicly opposed the tax. Finally, on September 29, Clinton publicly opposed the tax.

With this context, consider Clinton’s reply to O’Leary on September 26:

Given the politics now w bipartisan support including Schumer, I’ll support repeal w ‘sense of the Senate’ that revenues would have to be found. I’d be open to a range of options to do that. But we have to be careful that the R version passes which begins the unraveling of the ACA.

There’s a lot to unpack there. First, Schumer’s support gave Clinton cover, because she was going with the “sense of the Senate.” But the second sentence is even more important. The Schumer/Sanders proposal would repeal the Cadillac tax, but make up for the shortfall in revenue by imposing “a surtax on the wealthiest people in this country.” Clinton, instead favors the Republican version, which simply repeals the Cadillac tax altogether, and does nothing to make up for the lost revenues. This has the effect of simultaneously keeping Clinton away from a tax increase, and appeasing labor unions that hate the Cadillac tax. It’s the best of both worlds.

But Clinton recognizes full well that this option “begins the unraveling of the ACA.” She’s right! The cadillac tax is one of the few mechanisms in the ACA to control costs. Once those cost controls are gone, noting will reign in rising premiums. Hence the Unraveling of the law, which paves the way for national health insurance.

Yesterday, I wrote a piece for National Review called “Obamacare is Unraveling ahead of schedule.” It is going to be published tomorrow. Now I need to update it!

Update: In a new email from Wikileaks (H/T @dabzs), a reply to Clinton puts this comment in a different light. A reply from her adviser Jake Sullivan states:

Your point on R version is key. Our Bernie contrast rests on defending ACA, so crucial to cast this as a fix and to be on the lookout for R efforts to make this a Trojan Horse for broader dismantling of ACA.

I think Sullivan read Clinton’s email as saying “we have to be careful that the R version does not pass which would begin the unraveling of the ACA.” You have to alter a lot of words in the sentence to get to that meaning, but I don’t think it changes the point I made above. The version of the repeal Clinton ultimately supported did not find an alternate funding source. The Sanders plan would have raised tax on wealthy people. Clinton, in effect, supported the (lazy) Republican plan on eliminating (delaying for the time being) the tax, without any sort of offset.

Update 2: More from Business Insider:

Campaign adviser Ann O’Leary asked Clinton about her support for the so-called Cadillac tax built into the ACA, suggesting that she come out for a partial repeal. The Cadillac tax would impose a surcharge on high-cost health insurance plans with expansive coverage that employers provide for their workers.

Since many unions had advocated for getting these high-quality plans for their workers, these traditionally Democratic-leaning groups were opposed to the tax, leading to bipartisan support for a delay or repeal of that aspect of the ACA.

In Clinton’s response, the nominee appeared to support a Cadillac-tax repeal bill written by Republicans. Here’s the email in its entirety. (The Clinton campaign has not confirmed the authenticity of the emails.)

“Given the politics now w bipartisan support including [Democratic New York Sen. Chuck] Schumer, I’ll support repeal w[ith] ‘sense of the Senate’ that revenues would have to be found. I’d be open to a range of options to do that. But we have to be careful that the R version passes which begins the unraveling of the ACA.”

Clinton’s supporters, and critics, have found a few different ways to interpret her comments. Jeffrey Anderson, a Hudson Institute senior fellow and opponent of Obamacare, suggested that Clinton was advocating for the “unraveling” of the ACA altogether. The suggested reason: more support to pass a public option — in which the government would offer its own insurance to people to compete with private insurers — or a single-payer system, in which the government is the only insurance provider, similar to systems in the UK or Canada.

…

The second option is that Clinton simply misspoke. The email directly after hers in the chain, from foreign-policy adviser Jake Sullivan, read:

“Your point on R version is key. Our Bernie contrast rests on defending ACA, so crucial to cast this as a fix and to be on the lookout for R efforts to make this a Trojan Horse for broader dismantling of the ACA.”

Sanders, during the primaries, was more critical of Obamacare and loudly called for a government-sponsored plan. Chelsea Clinton, the eventual nominee’s daughter, memorably attacked him for this in the primary, saying Sanders wanted to “dismantle Medicare” and “empower Republican governors to take away Medicaid,” despite Sanders plan not really doing either.

Put another way, reading into the context that comes with Sullivan’s email, Clinton fat-fingered an email and was trying to establish a middle-ground between Sanders and more progressive Democrats and the Republican position. This version also suggests she was perhaps warning about the Republican version of the Cadillac-tax repeal bill because it had the potential to unravel Obamacare.

Throughout the campaign, Clinton has repeatedly expressed her support for the ACA on the trail and called for improvements and strengthening of the law.

The Clinton campaign didn’t immediately respond to a request for comment.

Update: New emails shed more light on this exchange.

On September 26, 2015, Ann O’Leary emailed Podesta, and others, asking whether the campaign should take a position on the Cadillac Tax:

Also, as long as I have all of your attention – on Cadillac Tax – the general consensus is that we should frame our position as Cadillac Tax should be repealed but that we should tax people who make more than $250K b/c they don’t need to have tax-payer funded subsidies. I have not nailed >>> this down with HRC. Should I try to do that today if we are going to announce this on Meet the Press?

Podesta wrote back:

I think we will pay a huge price with the WH on this one. Worries me.

O’Leary responded:

Jen/Brian – Do you all want to try to land repeal of Cadillac tax + applying tax to $250K and above on MTP? Need to lock it with HRC and set it up with unions if we are going to pull trigger tomorrow. Please advise.

Jenn Palmieri suggested this would not be important enough to take attention away from the email scandal:

It doesn’t pass bar of news that would break through emails. So I don’t >> know that it is worth the effort.

O’Leary thought it was a worthwhile position to take:

I think it is more Q of political question – if we need to do it for >> political reason, this may be good venue. John – What do you think about getting out there on it tomorrow?

Fallon supported the outright repeal:

Can I ask what headline we are seeking with this? Because it strikes me as a clever attempt to be both for and against the cadillac tax. Why arent we just for outright repeal if we are going to cede back all the revenue anyway by holding <250k harmless?

O’Leary responded on 9/26/15 at 5:07 p.m.:

The idea is to go back to her 2008 position, which was that we should not be subsidizing higher earners on their health plans. But I agree that we will not be gaining much revenue nor will we be getting health savings by taking this position so and maybe cleaner just to go for repeal. The problem is that there are number of people who think that is a step too far. Let me check with her and get back on this chain after I hear back.

Robby Mook wrote:

I vote for repeal!

Several hours later, after Clinton’s email referenced above, O’Leary wrote:

Jen/Brian – HRC would like to go with the Senate Dem version of repeal with no caveats but strong message that it must be paid for and R version without pay for is unacceptable. Meet the Press worthy? If so, I want to work with Nikki and Amanda to set it up with unions.

This line is nonsensical. A Senate Dem version with “no caveats,” and a Republican version “without pay” are exactly the same. They both repeal the tax without funding it through higher taxes. This is not the Sanders proposal, which would have explicitly taxed people who make more than $250k a year. I have no idea how O’Leary got this from HRC’s email. I’ll have to sort this out at some point, I suppose.