RE: courts and lawmaking
Marci, Isn’t there a clear difference between a court’s overriding of the legislature, and a court’s exercise of authority granted by the legislature? That distinction would seem to make your Lochner and Lee Optical arguments unpersuasive, as I think Eugene has pointed out numerous times. Perhaps your argument is that the RFRA is an unconstitutional delegation of authority by Congress to the judicial branch. I’m all for reinvigorating a non-delegation doctrine so as to rein in the administrative state (and I hope to write something on it soon). But wouldn’t it be an outpost position to say that Congress may not allow the federal courts to develop a kind of federal question common law, under standards set by Congress, and subject to correction at any time by statute? Would your approach make the Sherman Act unconstitutional, because it was designed to give (or at least has been interpreted as giving) give broad leeway to the courts to develop antitrust law as a kind of federal common law? See, e.g., the Supreme Court’s 2007 Leegin decision (http://www.law.cornell.edu/supct/html/06-480.ZS.html) overruling the 1911 Dr. Miles decision on resale price maintenance agreements, so that they no longer are per se violations of the Sherman Act but are now governed by a rule of reason analysis . That is not to say that it is good policy for Congress to give the federal courts this kind of authority, or that courts are particularly good at deciding how to exercise it. As is often the case, courts have to do what they can, despite institutional difficulties, to protect rights, whether constitutional or statutory. For those of us who think Smith was wrong, the RFRA is the best we can do to create meaningful and broad protection of religious liberty against actions of the federal government, and I’m happy that it is still in place. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, December 28, 2013 5:29 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: Re: courts and lawmaking Eugene- I take it you would not have overturned the Lochner line of cases? Your defense of unaccountable, robust policy making by judges would revive the federal court's role in those cases and reverse the reasoning of, eg, Williamson v lee optical.You have also failed to articulate any meaningful limit on federal court policy making. Perhaps you think there should be no limit, but that is not consistent w the separation of powers cases or the Framers' belief that all entities holding power must be limited and that one means of limitation is to assign different primary roles to each branch. also--It is not enough to say that Congress can fix a bad decision to excuse a violation of a branch's structural role. I also question your broad generalizations in describing purported federal judicial policy making . As you have to and do concede, federal common law is forbidden, so generally you are talking about cases where the federal courts are engaging in statutory interpretation. As such, they are not making law in the first instance, but rather according to canons of statutory construction. I think you have fundamentally confused the role of the courts with the results of particular decisions. I also think the state and federal courts cannot be equated in terms of their roles, so I am focussing on federal courts. You also have not responded to any of my concrete examples of how courts have gone wrong in religion cases because they lack critical facts where the fact record is manufactured by self-interested parties. Given the incontrovertible record of harm religious entities have inflicted on vulnerable populations, and the fact courts cannot pierce their self-serving crafting of the record in most circumstances, the role of the courts you describe is likely to harm minorities, children, the disabled, and women. Not to mention employees generally in light of Hosanna Tabor (remember employees are almost always vulnerable to employer acts unless protected by statute). For all of these reasons, I am not persuaded that your "description" of federal court lawmaking is accurate, and I continue to believe that RFRA puts federal courts in a role where they are institutionally incompetent.Their incompetence was clear in the Lochner cases. The religion cases and recent history do not make the courts anymore defensible as policymakers. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/li
Re: courts and lawmaking
Eugene- I take it you would not have overturned the Lochner line of cases? Your defense of unaccountable, robust policy making by judges would revive the federal court's role in those cases and reverse the reasoning of, eg, Williamson v lee optical.You have also failed to articulate any meaningful limit on federal court policy making. Perhaps you think there should be no limit, but that is not consistent w the separation of powers cases or the Framers' belief that all entities holding power must be limited and that one means of limitation is to assign different primary roles to each branch. also--It is not enough to say that Congress can fix a bad decision to excuse a violation of a branch's structural role. I also question your broad generalizations in describing purported federal judicial policy making . As you have to and do concede, federal common law is forbidden, so generally you are talking about cases where the federal courts are engaging in statutory interpretation. As such, they are not making law in the first instance, but rather according to canons of statutory construction. I think you have fundamentally confused the role of the courts with the results of particular decisions. I also think the state and federal courts cannot be equated in terms of their roles, so I am focussing on federal courts. You also have not responded to any of my concrete examples of how courts have gone wrong in religion cases because they lack critical facts where the fact record is manufactured by self-interested parties. Given the incontrovertible record of harm religious entities have inflicted on vulnerable populations, and the fact courts cannot pierce their self-serving crafting of the record in most circumstances, the role of the courts you describe is likely to harm minorities, children, the disabled, and women. Not to mention employees generally in light of Hosanna Tabor (remember employees are almost always vulnerable to employer acts unless protected by statute). For all of these reasons, I am not persuaded that your "description" of federal court lawmaking is accurate, and I continue to believe that RFRA puts federal courts in a role where they are institutionally incompetent.Their incompetence was clear in the Lochner cases. The religion cases and recent history do not make the courts anymore defensible as policymakers. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 28, 2013, at 5:53 PM, "Volokh, Eugene" wrote: > But courts have made rules in the past regarding substantive > law as well -- what shall be a crime, what shall be a tort, what constitutes > a contract, what property rights are recognized, and so on. They continue to > make such rules in many areas, less so with regard to substantive criminal > law but, in many jurisdictions, as to criminal law defenses. These decisions > often involve broad-ranging public policy issues, such as what product > liability regime to have, whether to recognize various limitations on duty > (such as social host rules), whether the heart balm torts should be > abrogated, whether the criminal law necessity defense is recognized, and so > on. To be sure, they might err on this, partly because their factfinding > sources are more limited, but the legislature can step in to correct those > errors. Each branch has its own limitation, but the American tradition is > that they have made law together. > > And this tradition has included the federal courts. It’s > true that in diversity cases there is no general federal common law, and that > common law crimes were rejected by federal courts long before the penal codes > were codified in the states. But in those areas where the federal government > has broad authority -- such as admiralty law, federal enclaves, or > substantive defenses to federal crimes -- federal courts have unsurprisingly > followed much the same path as state courts. > > I don’t see why legislative authorization to federal courts > to engage in such continued decisionmaking -- whether as to judicial practice > and procedure (evidence), substantive copyright law (fair use), implicitly as > to substantive criminal law defenses, or as to a newly statutory religious > objection defense (the best way of viewing RFRA, I think, and analogous to > fair use and the criminal law defenses) -- is at all unconstitutional, > whether done by state legislatures using state RFRAs or by Congress using the > federal RFRA. If Congress or a state legislature doesn’t like a specific > exemption granted under a RFRA, it can legislatively exclude that subject > from the RFRA, and if it generally doesn’t like judicial decisionmaking under > RFRAs, it can repeal the RFRA. But there is no basis, I think, for courts to > say that it’s uncons
Re: courts and lawmaking
But courts have made rules in the past regarding substantive law as well -- what shall be a crime, what shall be a tort, what constitutes a contract, what property rights are recognized, and so on. They continue to make such rules in many areas, less so with regard to substantive criminal law but, in many jurisdictions, as to criminal law defenses. These decisions often involve broad-ranging public policy issues, such as what product liability regime to have, whether to recognize various limitations on duty (such as social host rules), whether the heart balm torts should be abrogated, whether the criminal law necessity defense is recognized, and so on. To be sure, they might err on this, partly because their factfinding sources are more limited, but the legislature can step in to correct those errors. Each branch has its own limitation, but the American tradition is that they have made law together. And this tradition has included the federal courts. It's true that in diversity cases there is no general federal common law, and that common law crimes were rejected by federal courts long before the penal codes were codified in the states. But in those areas where the federal government has broad authority -- such as admiralty law, federal enclaves, or substantive defenses to federal crimes -- federal courts have unsurprisingly followed much the same path as state courts. I don't see why legislative authorization to federal courts to engage in such continued decisionmaking -- whether as to judicial practice and procedure (evidence), substantive copyright law (fair use), implicitly as to substantive criminal law defenses, or as to a newly statutory religious objection defense (the best way of viewing RFRA, I think, and analogous to fair use and the criminal law defenses) -- is at all unconstitutional, whether done by state legislatures using state RFRAs or by Congress using the federal RFRA. If Congress or a state legislature doesn't like a specific exemption granted under a RFRA, it can legislatively exclude that subject from the RFRA, and if it generally doesn't like judicial decisionmaking under RFRAs, it can repeal the RFRA. But there is no basis, I think, for courts to say that it's unconstitutional for legislative to give courts such lawmaking powers, especially in light of how much of American law has been made by courts (again, as with RFRA, subject to possible legislative override). Eugene From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Saturday, December 28, 2013 2:38 PM To: religionlaw@lists.ucla.edu Subject: Re: Courts and lawmaking Eugene-- I am very familiar with your common law reasoning, which I do find persuasive in terms of explaining to students the incremental developments of constitutional law over time. I don't find it persuasive, however, in explaining institutional competence. I also don't find persuasive the idea that because the courts hve made rules in the past regarding judicial practice and procedure that they are therefore competent to decide broad-ranging public policy issues. I made the argument below in God vs. the Gavel in 2005, and will soon be publishing a follow-up to it, so I welcome responses. Courts are constrained by the records manufactured by the parties, and constrained from the broad-ranging fact and policy inquiry that legislators can do. In free exercise cases, in particular, the record typically excludes facts and policies that should be taken into account when exemptions are being considered. The federal courts are constrained from considering that larger public policy beyond the facts and parties of the case under the Case and Controversy Clause, which means that the courts are literally creating public policy without reference to the parameters necessary reach the correct decision. A great example of this is Yoder, where the Court was uninformed of the impact on Amish children who are under-educated, the number of children who later choose not to follow the religion, and, therefore for whom the agri-education is likely inadequate, and a background set of blind assumptions about the necessary goodness of Amish practices and traditions. The Court merriily embraced a halcyon vision of the beauty of the Amish way of life without reference to facts that would have clashed with the Court's uninformed assumptions. This extreme involvement by the courts in policy-making under RFRA, with the inadequate fact records developed (in part because the religious group demanding the exemption is the entity with the most knowledge regarding the negative aspects of the practice and with the strongest incentive to hide those negative realities) is also dangerous for the vulnerable. For example, the O Centro decision was decided with no consideration whether children are given the drugs, a fact confirmed to me by the group's leader i
Re: Courts and lawmaking
Eugene-- I am very familiar with your common law reasoning, which I do find persuasive in terms of explaining to students the incremental developments of constitutional law over time. I don't find it persuasive, however, in explaining institutional competence. I also don't find persuasive the idea that because the courts hve made rules in the past regarding judicial practice and procedure that they are therefore competent to decide broad-ranging public policy issues. I made the argument below in God vs. the Gavel in 2005, and will soon be publishing a follow-up to it, so I welcome responses. Courts are constrained by the records manufactured by the parties, and constrained from the broad-ranging fact and policy inquiry that legislators can do. In free exercise cases, in particular, the record typically excludes facts and policies that should be taken into account when exemptions are being considered. The federal courts are constrained from considering that larger public policy beyond the facts and parties of the case under the Case and Controversy Clause, which means that the courts are literally creating public policy without reference to the parameters necessary reach the correct decision. A great example of this is Yoder, where the Court was uninformed of the impact on Amish children who are under-educated, the number of children who later choose not to follow the religion, and, therefore for whom the agri-education is likely inadequate, and a background set of blind assumptions about the necessary goodness of Amish practices and traditions. The Court merriily embraced a halcyon vision of the beauty of the Amish way of life without reference to facts that would have clashed with the Court's uninformed assumptions. This extreme involvement by the courts in policy-making under RFRA, with the inadequate fact records developed (in part because the religious group demanding the exemption is the entity with the most knowledge regarding the negative aspects of the practice and with the strongest incentive to hide those negative realities) is also dangerous for the vulnerable. For example, the O Centro decision was decided with no consideration whether children are given the drugs, a fact confirmed to me by the group's leader in an email exchange, after I wrote critically of the decision. Had there been congressional hearings on the issue, rather than federal courts jumping in, we might have learned the realities of their practices, rather than the spruced-up version presented in court. Another recent example of the failure of judicial fact-finding to reach informed religious decisions is the hollywood-style polygamy case being litigated in Utah, where the court recently defanged the polygamy laws, because the facts of the case did not develop the reality of polygamy for most of the women and children in polygamous communities. It was not in the interest of a reality show polygamy family to disclose to the court precisely what happens in these communities, and the state completely fell down on the job. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Volokh, Eugene To: Law & Religion issues for Law Academics Sent: Sat, Dec 28, 2013 4:50 pm Subject: Courts and lawmaking I also used to think that RFRA calls for improper judicial lawmaking (though not unconstitutional lawmaking). But I then changed my views, for reasons I described in more detail in my "Common-Law Model for Religious Exemptions" piece, http://www.law.ucla.edu/volokh/relfree.pdf. Here's the short version: The problem with the Lochner line of cases isn't that courts were lawmakers. Most of American law -- tort law, contract law, evidence law, criminal law, and more -- was initially made by courts. (To be sure, they were mostly state courts, but federal courts created the federal law of evidence and civil procedure, developed federal admiralty law, developed and still develop criminal law defenses, and so on.) To this day, this judicial lawmaking continues. And sometimes Congress specifically authorizes courts to continue engaging in such lawmaking, most prominently in the federal law of evidentiary privileges, but also in fair use and some other areas. The key difference between this and Lochner is that courts are entitled to make the law, including by developing exceptions from statutory duties (e.g., criminal law defenses, testimonial privileges, and the like), but *with the possibility of legislative override*. RFRAs, federal and state, fit well within this mold. They involve a legislature's decision that, while the legislature is happy creating some generally applicable obligations, they want to leave it to courts to develop certain exceptions from those obligations -- m
Courts and lawmaking
I also used to think that RFRA calls for improper judicial lawmaking (though not unconstitutional lawmaking). But I then changed my views, for reasons I described in more detail in my "Common-Law Model for Religious Exemptions" piece, http://www.law.ucla.edu/volokh/relfree.pdf. Here's the short version: The problem with the Lochner line of cases isn't that courts were lawmakers. Most of American law -- tort law, contract law, evidence law, criminal law, and more -- was initially made by courts. (To be sure, they were mostly state courts, but federal courts created the federal law of evidence and civil procedure, developed federal admiralty law, developed and still develop criminal law defenses, and so on.) To this day, this judicial lawmaking continues. And sometimes Congress specifically authorizes courts to continue engaging in such lawmaking, most prominently in the federal law of evidentiary privileges, but also in fair use and some other areas. The key difference between this and Lochner is that courts are entitled to make the law, including by developing exceptions from statutory duties (e.g., criminal law defenses, testimonial privileges, and the like), but *with the possibility of legislative override*. RFRAs, federal and state, fit well within this mold. They involve a legislature's decision that, while the legislature is happy creating some generally applicable obligations, they want to leave it to courts to develop certain exceptions from those obligations -- much like courts developed other legal rules in the past -- subject to later revision by the legislature. And I don't see what's unconstitutional, or even bad institutional allocation of power, about that. Eugene Marci Hamilton writes: All of this matters, because it is my view that RFRA in these cases is as unconstitutional as it was in Boerne. The Court did not limit its reasoning to state law and relied explicitly on separation of powers. Politics, not the Court, transformed Boerne into a decision only relevant to state law.As I have said before, and may have missed either Eugene's or Marty's responses over the holiday, their debate is one the courts are ill-suited to decide. If the Court takes this approach, the mandate cases will be an excellent example of how RFRA turns courts into legislatures and makes them lawmakers (in the tradition actually of the Lochner cases where strict scrutiny was employed to permit the courts to second guess employment laws), without the competence to do so. The problem of course is that the DOJ has failed to attack RFRA's constitutionality but that is, once again, politics, not constitutional analysis. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 4:54 PM, Michael Worley mailto:mwor...@byulaw.net>> wrote: You have a fair point; I'm uncomfortable with Reynolds, but that doesn't mean there weren't less protections for religion pre-incorporation. However, the distinguishing of Yoder and Sherbert (not to mention Cantwell) in Smith is just a legal fiction Scalia made up. The Law Review article by James D. Gordon III "Free exercise on the Mountaintop" illustrates well the problems with the theory that Smith was right On Wed, Dec 18, 2013 at 2:37 PM, Marci Hamilton mailto:hamilto...@aol.com>> wrote: This reasoning is based on the mythology created around the free exercise clause by the reactions to Smith and the misrepresentations about the doctrine to Congress. It is quite remarkable this many years later so many continue to parrot what is in fact untrue. Yoder was an outlier and Sherbert was not applied outside unemployment. And the Justices thought in those terms during the Term Smith was decided. Now folks may well want a different regime than pre-Smith but it would be refreshing to see at least scholars (if not litigators) accurately discuss the actual doctrine and not the doctrine they prefer. The New York ACA case yesterday including indefensible reasoning on what RFRA is and what the doctrine was before. For example, the court cites to Michael mcConnell's article, for the proposition that mandatory exemptions were common at the time of the framing, a theory the Justices have rejected and Ellis West and Philip Hamburger have shown to be deeply flawed historically. In my own work on liberty vs licentiousness, it is abundantly clear the framers were far closer to the Smith way of reasoning than mandatory accommodation. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 9:45 AM, Michael Worley mailto: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'
Re: Are large employers really better off dropping health insurance?
The holidays have made it difficult to keep up but I did want to respond to Michael. The notion that the distinguishing of Sherbert and Yoder were pure legal fictions in Smith is unpersuasive.With respect to Sherbert, the Court's reasoning is actually accurate and reflects the Court's understanding of Smith as a case of first impression as the Justice's Conference notes show. The distinguishing of Yoder is unpersuasive but it appears the Court was reinforcing what Yoder was until RFRA -- an outlier. Literally the only case to apply strict scrutiny to a neutral, generally applicable law, with little or no precedential value. Its value is even more questionable today when children's interests would have to be taken into account and, therefore, Douglass's view would likely change the result, especially now that we have strong evidence of the harm done to Amish children by the failure to educate them. All of this matters, because it is my view that RFRA in these cases is as unconstitutional as it was in Boerne. The Court did not limit its reasoning to state law and relied explicitly on separation of powers. Politics, not the Court, transformed Boerne into a decision only relevant to state law.As I have said before, and may have missed either Eugene's or Marty's responses over the holiday, their debate is one the courts are ill-suited to decide. If the Court takes this approach, the mandate cases will be an excellent example of how RFRA turns courts into legislatures and makes them lawmakers (in the tradition actually of the Lochner cases where strict scrutiny was employed to permit the courts to second guess employment laws), without the competence to do so. The problem of course is that the DOJ has failed to attack RFRA's constitutionality but that is, once again, politics, not constitutional analysis. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 4:54 PM, Michael Worley wrote: > You have a fair point; I'm uncomfortable with Reynolds, but that doesn't > mean there weren't less protections for religion pre-incorporation. However, > the distinguishing of Yoder and Sherbert (not to mention Cantwell) in Smith > is just a legal fiction Scalia made up. The Law Review article by James D. > Gordon III "Free exercise on the Mountaintop" illustrates well the problems > with the theory that Smith was right > > > On Wed, Dec 18, 2013 at 2:37 PM, Marci Hamilton wrote: >> This reasoning is based on the mythology created around the free exercise >> clause by the reactions to Smith and the misrepresentations about the >> doctrine to Congress. It is quite remarkable this many years later so many >> continue to parrot what is in fact untrue. Yoder was an outlier and >> Sherbert was not applied outside unemployment. And the Justices thought in >> those terms during the Term Smith was decided. >> >> Now folks may well want a different regime than pre-Smith but it would be >> refreshing to see at least scholars (if not litigators) accurately discuss >> the actual doctrine and not the doctrine they prefer. >> >> The New York ACA case yesterday including indefensible reasoning on what >> RFRA is and what the doctrine was before. For example, the court cites to >> Michael mcConnell's article, for the proposition that mandatory exemptions >> were common at the time of the framing, a theory the Justices have rejected >> and Ellis West and Philip Hamburger have shown to be deeply flawed >> historically. In my own work on liberty vs licentiousness, it is abundantly >> clear the framers were far closer to the Smith way of reasoning than >> mandatory accommodation. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> On Dec 18, 2013, at 9:45 AM, Michael Worley 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 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 t
Re: Are large employers really better off dropping health insurance?
Sorry it took so long. My response to Eugene and others raising the same question is here: http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html As always, I welcome any critiques/suggestions from list-members, thanks. On Wed, Dec 18, 2013 at 11:36 AM, Marty Lederman wrote: > I apologize for not responding right away, but I'm slammed with other > stuff. There is a lot to say here, and I think it's important -- Eugene is > raising some good questions. I'll try to respond in the next day or so; in > the meantime, I'm very grateful for all the reactions, both supportive and > critical (and both!) . . . please keep them coming, thanks. > > > On Tue, Dec 17, 2013 at 9:10 PM, Volokh, Eugene 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 >> >> >> >> >> > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
