Did Justice Kagan embarrass herself during the Hobby Lobby oral arguments?
If Betsey McCaughey is correct (and I bet she is, because she has not only read the entire ObamaCare bill, she has written a book about it), Supreme Court Justice Elena Kagan publicly humiliated herself during the oral arguments on the Hobby Lobby case, revealing that she either did not read the law, or failed to comprehend it if she did so.
Writing in the New York Sun, McCaughey lays out what is wrong with the Justice’s declaration about Obamacare: she asserted that the statute itself mandates provision of birth control.
Not one word in the Affordable Care Act guarantees health plans will cover birth control products. There is no right. President Obama and his Secretary of Health and Human Services added that requirement by regulation. Women have a constitutionally protected right to use birth control, but nothing guarantees that they can get it from an employer.
It was shocking to hear Justice Kagan make the same spurious claim — that women are entitled to employer provided contraceptives — during oral argument: “Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage.” Wrong, Justice Kagan. Did you also forgo reading the law, like most members of Congress?
The distinction between a regulation and a law is no small matter. As Hobby Lobby’s lawyer stressed in his closing statement, a statute, in this case Congress’s Religious Freedom Restoration Act, trumps a regulation.
Kagan’s mistake, if that’s what it was, goes to the heart of a serious contemporary problem: the proliferation of bureaucratic regulation carrying the force of law, wholly produced not by legislation, but by bureaucrats.
It should be deeply shocking and embarrassing if a sitting Supreme Court Justice confused bureaucratic regulation for actual statutory language. A former Harvard Law School professor, and dean, no less. One of the reasons we venerate the Supreme Court is that the justices are expected to immerse themselves in the cases, and ponder them deeply.
Fortunately, there will be ample opportunity, as the Justices draft their thoughts on the case and send them to one another, for Kagan’s apparent error to be pointed out – no doubt in a collegial manner – by her colleagues.
As Betsey McCaughey posits, it looks a lot like the errant Justice got her information from Democrat “war on women:” talking points, not from legal scholarship. It’s the sort of error Professor Kagan might have given a student an “F” for making.
Hat tip: Lucianne.com