By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY, April 9, 2015 6:53 p.m. ET

Debates about the Indiana and Arkansas Religious Freedom Restoration Acts, or RFRAs, have regrettably pitted religious freedom against gay rights. Critics claim the laws provide a license to discriminate against lesbian, gay, bisexual or transgender (LGBT) individuals. But this criticism shouldn’t be aimed at the religious-freedom laws, which don’t license discrimination based on sexual orientation or anything else.

Those wanting to advance LGBT rights should focus on enacting laws that bar discrimination. If there is a legal “license” to discriminate based on sexual orientation, it is because few jurisdictions today provide protection against such discrimination, or because the Constitution may immunize such behavior in certain circumstances.

There is no federal law prohibiting private discrimination based on sexual orientation. An executive order by President Obama in 2014 bans such discrimination only for federal workers and contractors. About 20 states and some municipalities prohibit sexual-orientation discrimination in workplaces and public accommodations. But the majority of states still don’t proscribe discrimination based on sexual orientation, though discrimination based on race, gender, ethnicity or national origin is banned.

The federal Religious Freedom Restoration Act was passed by overwhelming bipartisan majorities and signed by President Clinton in 1993. It represented a backlash against the Supreme Court’s 1990 decision in Employment Division v. Smith. That decision held that the First Amendment’s Free Exercise Clause doesn’t allow a religious exemption from laws of general applicability—e.g., compulsory military service, or prohibitions on drug use or animal cruelty—even if those laws substantially burden religious exercise.

Read more »

By DAVID RIVKIN and ELIZABETH PRICE FOLEY, March 11, 2015

Last Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the latest challenge to the Affordable Care Act (ACA). The case centers on a provision of Obamacare that authorizes federal tax subsidies for individuals only if they purchase health insurance through an “Exchange established by the State.” If an individual purchases insurance through a federal-run exchange (in the event that the state opts out of setting up its own exchange), can she still qualify for Obamacare subsidies? The Obama administration says yes; the King plaintiffs say no. 

A great deal is at stake here. If the plaintiffs win, individuals in 34 states—the states that have opted not to operate a state insurance exchange—will still be subject to Obamacare’s individual mandate, but they won’t qualify for federal tax subsidies. As a result, their insurance will cost more out-of-pocket. Moreover, because individuals in these 34 states won’t get tax subsidies, employers in these states won’t be subject to the employer mandate, so they won’t have to offer health insurance and can’t be taxed for failing to do so. And yet, those states would be able to continue registering their profound opposition to the entirety of the Obamacare regulatory scheme, thereby undermining its legitimacy. Given these consequences, supporters of Obamacare are pulling out all the stops to prevent a plaintiffs’ victory.

One recent attempt to save tax subsidies in these 34 states has come from an amicus brief filed on behalf of four law professors, two of whom are former clerks to Justice Ruth Bader Ginsburg. During the King oral arguments, it became apparent that their argument had found favor with Ginsburg and three other liberal justices and had gained some traction with the court’s centrist, Justice Anthony Kennedy.

Ironically, the centerpiece of their argument is federalism—the division of powers between state and federal governments—a concept that, while a key part of the Constitution’s separation of powers architecture, is not particularly favored by liberals. Specifically, the law professors’ claim that the court should rule in favor of the Obama administration by invoking the “clear statement rule,” a legal doctrine designed to protect state sovereignty.

However, applying this rule to the King case would be unprecedented and deeply antithetical to federalism. Read more »

By Elizabeth Price Foley and David B. Rivkin Jr. — Tuesday, March 10, 2015

Since its partisan passage in 2010, Obamacare has traversed a rocky road. President Obama has taken numerous executive actions to delay and modify the poorly written law in an effort to ease the political consequences of full implementation and make it work. However, in the president’s zeal to rewrite yet another area of law — immigration — he’s sabotaged one of Obamacare’s primary goals: expanding employer-sponsored health insurance.

The president’s executive actions on immigration — the major one of which is currently on hold due to a court order — confers two specific benefits upon approximately 6 million individuals who have entered this country illegally or overstayed their visas. First, they are completely exempted from deportation. Second, they are granted work permits. These unilaterally conferred benefits are powerful evidence that the president isn’t just exercising executive “discretion” by prioritizing enforcement of existing immigration law — he is rewriting it.

This massive influx of now-lawful workers will predictably reduce job opportunities for U.S. citizens and lawful residents. But beyond this obvious negative impact, granting work permits to these individuals will have a subtler, equally pernicious effect: It will encourage employers to hire these 6 million individuals over U.S. citizens and legal residents. This is due to Obamacare’s structure.

Under Obamacare, employers must pay a tax — called the “employer responsibility” tax — if they either fail to offer insurance altogether, or they offer “substandard” insurance. The employer responsibility tax is hefty, ranging between $2,000 to $3,000 per year, and is payable for every full-time employee who buys health insurance on an exchange and receives a tax subsidy as a result. The idea is to incentivize employers to offer generous insurance coverage, thus keeping workers off the exchanges, and away from tax subsidies. If no full-time worker receives a tax subsidy for buying health insurance, the employer will pay no employer responsibility tax. Read more »

By Elizabeth Price Foley and David Rivkin, March 3 2015, 11:57am

In Federalist No. 22, Alexander Hamilton observed, “Laws are a dead letter without the courts to expound and define their true meaning and operation.” In constitutional controversies, the judiciary’s role is even more profound. Last week, the Supreme Court heard arguments in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that will signal how willing the Court is to prevent separation of powers from becoming a dead letter.

Separation of powers protects individual liberty by preventing any one branch of government from amassing too much power. It also ensures that government functions effectively, by assigning to each branch those powers that are most appropriate to its nature. For example, legislating is best accomplished by a multi-member body that engages in extended debate and deliberation. By contrast, waging war requires timeliness, and is thus best given to a unitary executive.

The Arizona case involves a turf dispute between Arizona’s legislative and executive branches, but it’s unclear if the Court is amenable to refereeing this constitutional conflict.  The case is therefore a canary in the coalmine for “legislative standing,” which means a legislature’s ability to defend, in court, its lawmaking prerogative against executive assault.  This is important not only to Arizona’s legislature, but any legislature, including the U.S. Congress.

At issue in the case is the constitutionality of Proposition 106, a referendum passed by Arizona voters that divested the legislature of drawing the state’s congressional districts and gave that power to an independent commission. When the commission redrew the districts in 2012, the Arizona legislature filed suit, asserting that the commission had violated Article I, section 4, of the U.S. Constitution, stating, “the Times, Places and Manner of holding elections for … Representatives [in the House] shall be prescribed in each State by the Legislature thereof .”

Before the meaning of this language can be resolved by the Court, it must first find that the Arizona legislature has standing to sue. In over 225 years of constitutional history, the Court hasn’t definitely articulated when legislative standing is proper. Read more »

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban. Read more »

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Read more »