I don't think it becomes the equivalent of the Ninth Amendment, or a shell,
without heightened scrutiny as a freestanding principle. And I say that as a
fan of the pre-Smith regime. Rather, it becomes an equality/speech provision,
like the rest of the modern First Amendment. I am by no means a fan of that
tendency. But it still leaves the clause as something, not nothing.
> On Dec 18, 2013, at 9:01 AM, "Michael Worley" <mwor...@byulaw.net> wrote:
>
> And yet, without some form of heightened scrutiny, the free exercise clause
> becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing
> right (I could make that argument, but I'm not), I'm saying that we have to
> let judges do this balancing in some way. Otherwise the Free Exercise Clause
> will become as important as the Ninth Amendment is to contemporary
> jurisprudence. And Employment Division's principles apply to churches, not
> just the litigants in this set of cases.
>
> There are plenty of 14th Amendment cases (think Brown and subsequent busing
> cases in lower courts) where judges have acted as "super-legislatures." Why?
> To protect rights!
>
> Michael
>
>
>> On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton <hamilto...@aol.com> wrote:
>> This exchange, which shows both Marty and Eugene's high qualifications for
>> public service, underscores how RFRA (and RLUIPA) turn federal courts into
>> super legislatures and violate the separation of powers -- as Boerne ruled.
>> No court in my view is institutionally competent to make these assessments
>> and no judge, who is unaccountable to the electorate, should.
>>
>> Marci
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>>> On Dec 17, 2013, at 9:10 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote:
>>>
>>> The heart of Marty’s argument (I focus for now on item 1 below) is, I
>>> think, an empirical claim: Large employers such as Hobby Lobby would be
>>> better off just dropping coverage, paying the $2000/employee/year tax,
>>> “us[ing] some of [the] enormous cost savings” to compensate employees for
>>> the lost coverage, thus keeping the employees happy, and then pocketing the
>>> rest of the “enormous cost savings.” (Indeed, if employees grumble over
>>> the inconvenience or just the change, the employers can split some of the
>>> rest of the enormous cost savings with the employees -- a win-win
>>> proposition for employers and employees.) And, if Marty is right, this
>>> would be true for employers generally, not just religious employers. We
>>> should thus expect a large fraction of savvy employers to take advantage of
>>> this option, purely out of respect for Mammon quite regardless of God.
>>>
>>>
>>>
>>> But I wonder whether this is empirically likely to be true, given not just
>>> the nondeductibility of the tax, but also other factors, such as payroll
>>> taxes on the compensation payment to the employees. It’s not surprising
>>> that the Justice Department hasn’t made this argument, since the
>>> Administration has long argued (unless I’m mistaken) that large employers
>>> won’t drop employer-based health insurance. And the Congressional Budget
>>> Office,
>>> http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf,
>>> likewise took the view that only a tiny percentage of employers would drop
>>> their health insurance, because “the legislation leaves in place
>>> substantial financial advantages for many people to receive insurance
>>> coverage through their employers, and it provides some new incentives for
>>> employers to offer insurance coverage to their employees.”
>>>
>>>
>>>
>>> Now of course that was in 2011, and perhaps the analysis today would be
>>> different. But the CBO’s estimates still give me pause. And if the CBO is
>>> right, and large employers generally would lose financially -- rather than
>>> gain from capturing some of the “enormous cost savings” -- by dropping
>>> health insurance and adequately compensating employees, then I would think
>>> Hobby Lobby and others would be in the same position. The mandate, even
>>> enforced as a tax, thus would be a substantial burden.
>>>
>>>
>>>
>>> Am I mistaken in this? Marty, do you have any pointers to studies that
>>> support your sense of the money flows on this, and contradict what I see as
>>> the CBO’s view?
>>>
>>>
>>>
>>> Eugene
>>>
>>>
>>>
>>>
>>>
>>> Marty writes:
>>>
>>>
>>>
>>> 1. On your first point, even if the 4980H(a) tax were the equivalent of a
>>> $3000 assessment (because it's paid with after-tax dollars), the average
>>> cost for providing health insurance to employees is, as I understand it,
>>> closer to $10,000, so the employer would save about $7000 per employee.
>>> (In any event, there are no allegations in these cases that HL or CW is
>>> significantly differently situated than a typical employer, e.g., that they
>>> have a workforce comprised of almost all single employees with no family
>>> coverage.)
>>>
>>>
>>> In order to remain competitive for recruiting or retaining most of their
>>> employees, the plaintiffs wouldn't have to kick in any extra money in
>>> salary, because the employees would have their exchange-purchased plans
>>> subsidized by the federal government (both in terms of the cost-savings
>>> realized by virtue of the exchanges themselves as well as the government's
>>> premium tax credits and cost-sharing reductions. To be sure, some of their
>>> more well-compensated employees might have paid less in premiums for the HL
>>> plan than they would to purchase a plan on the exchange (maybe -- again,
>>> there's no allegation or evidence of that here). But to make up that
>>> hypothetical shortfall, and attract those employees, HL need only use some
>>> of its enormous cost savings to sweeten their salaries. (This is
>>> presumably what the many large employers who do not provide plans will do.)
>>>
>>>
>>> For all these reasons, it is difficult to imagine HL or CW --or, more to
>>> the point, the average large employer -- being financially worse off if it
>>> pays the assessment. (And again, there's no allegation of facts that would
>>> alter that conclusion here, in any event.)
>>>
>>> _______________________________________________
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>>>
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>>
>> _______________________________________________
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>
>
>
> --
> Michael Worley
> BYU Law School, Class of 2014
> _______________________________________________
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