Conservative media outlets are downright gleeful over a recent exchange between Rep. Trey Gowdy (R-SC) and Secretary of Health and Human Services Kathleen Sebelius that culminates with Sebelius stating that she did not receive a legal memo addressing whether the Obama Administration’s recent effort to expand access to contraception is unconstitutional.
GOWDY: When you say you balance things, can you understand why I might be seeking a constitutional balancing instead of any other kind?
SEBELIUS: I do, sir, and I defer to our lawyers to give me good advice on the Constitution. I do not pretend to be a constitutional lawyer.
GOWDY: Is there a legal memo that you relied on?
SEBELIUS: I relied on discussions.
GOWDY: At least when Attorney General Holder made his recess appointments, there was a legal memo that he relied on. Is there one you can share with us?
SEBELIUS: Attorney General Holder clearly runs the Justice Department and lives in a world of legal memos.
Gowdy, who, among other things, appears confused about which executive branch official has the power to make recess appointments, seems quite proud of the fact that he made Sebelius admit that she never received a written document explaining why the Constitution permits regulations ensuring that working women will be able to access birth control — and that she instead relied on oral conversations with attorneys. There’s a very good reason why Sebelius would not need such a memo, however. The primary conservative argument against contraceptive access — that allowing it somehow violates the constitutional rights of religious groups who object to contraception — is completely meritless and hardly requires a lengthy memo. I recently dismissed it in just two paragraphs, for example:
There is nothing in the Constitution saying that a person does not have to comply with the law simply because they object to it — if this were actually true, anyone could immunize themselves from paying taxes simply by claiming a moral objection to doing so. Nor does the Constitution allow people to violate the law simply because they have a religious objection to it.
The seminal Supreme Court opinion establishing this point was written by conservative Justice Antonin Scalia — who, coincidentally, is Catholic. Scalia explains that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” In other words, so long as a law does not single out Catholics (or any other faith) for inferior treatment, the law applies universally to everyone.
It would be a tremendous waste of limited resources to have the government employ armies of lawyers whose job is to anticipate every false legal argument that might be thrown against a new regulation and draft memos explaining why those false theories shouldn’t prevent the regulation from being implemented. Perhaps Mr. Gowdy thinks it would be a good use of the American people’s taxes to create such a stimulus program for government lawyers, but there are much better ways for America to spent its money.
On a more serious note, however, there is something very ominous about Gowdy’s exchange with Sebelius. The Constitutional case against contraceptive access is meritless, and any competent lawyer would tell Sebelius as much in just a few sentences. The same, however, can also be said about the case against the Affordable Care Act. If the Supreme Court strikes down health reform, it will send a clear message to every judge in the country that the law does not apply any more — at least when enough conservative officials object to the law.
In other words, Sebelius may need to hire an army of rabidly conservative lawyers just to tell her which frivolous legal arguments she must heed regardless of the fact that they have no basis in the Constitution.