Editor’s note: the following is commentary from Harold Johnson of the Pacific Legal Foundation and does not necessarily reflect the views of PublicCEO or its affiliates. Johnson presents one side of the coin – please feel free to express your own opinion in the comments section or email the editor with a guest op-ed.
By Harold Johnson.
For those of us on the West Coast, is there a “local angle” to the high-profile stories out of the U.S. Supreme Court yesterday?
Four actions by the court – the two big cases that were decided, and two other big cases that were passed over – resonate in California in a special way.
But not, in every instance, in a good way. The two high-profile rulings that came down – in Hobby Lobby and the union dues lawsuit – cheered those who favor rational limits on government. But the justices also gave big-government boosters something to smile about, by declining two cases that challenged alarming administrative overreach right here in the Golden State.
Here’s a brief box score:
1. A win for workers’ rights: Harris v. Quinn
In this case out of Illinois, the Supreme Court held that home health-care workers can’t be coerced into paying dues to a public sector union.
The ruling applies only to in-home health aides, labeled as “quasi” public employees, many of whom are caring for their family members. But Justice Samuel Alito’s majority opinion also includes broader language about free speech, acknowledging that the First Amendment does not sit easily with any mandates forcing any public employees to underwrite a union that they might not agree with.
California implication: By criticizing a 1977 Supreme Court precedent that allows states to require public employees to pay union dues, the Harris ruling can only encourage legal sorties against the California Teachers Association and the mega-money-raising machine that it operates. A lawsuit now before the Ninth Circuit, by the Center for Individual Rights on behalf of a number of teachers, argues that educators have a right not to be forced to fund the teachers union and its ideologically infused agenda.
2. Victory for business owners’ rights: Burwell v. Hobby Lobby
Do the protections of the First Amendment – such as its guarantee of the free exercise of religion – extend to business people, or do you surrender these freedoms when you become an entrepreneur and enter into a corporate structure?
The Hobby Lobby ruling affirms that business people, at least in small corporations, do indeed enjoy core free exercise rights. And if so, other First Amendment freedoms must surely follow.
The court ruled that closely held corporations like family-owned Hobby Lobby, whose owners hold strong religious convictions, can’t be compelled under Obamacare to pay for forms of contraception that they view as tantamount to abortion, violating their faith.
Let’s be clear: The case isn’t really about access to contraception. As the court noted, there are other ways that the feds could provide any and all kinds of contraceptives, without dragging Hobby Lobby’s owners into the process. The government could pay directly, or have insurers structure a program independent of the company.
Also, Justice Alito’s majority opinion stressed that the ruling offers no “shield” to discrimination in the name of religion. What it does is recognize that First Amendment rights must be given consideration, and weighed against other interests, when business regulations are developed by bureaucracies, and evaluated by courts.
California relevance: For commercial property owners in this state, there is at least one First Amendment guarantee that sorely needs to be revived – the right of free speech, or rather, the right not to be “forced” to speak.
Under the controversial Pruneyard line of cases, California courts have forced shopping centers to play host to all manner of handbillers, solicitors, petitioners, sandwich-board wearers, end-timers, and doomsayers.
When property owners are told by the government to provide a forum for views they don’t share, what we’re looking at is compelled speech, the opposite of First Amendment freedom. Could the message of Hobby Lobby – that businesses and their owners have rights, too – spur our esteemed judges to re-think the pernicious practice of foisting placard-bearers and signature-gatherers on store owners who don’t want them?
There’s no law against hoping.
3. Bureaucrats evade accountability: The Drakes Bay Oyster Company case
This is one of the two big disappointments yesterday. The High Court dealt a blow to the cause of responsible government, by declining to review the feds’ irresponsible drive to shut down Drakes Bay Oyster Company in the Point Reyes National Seashore north of San Francisco.
The 80-year-old, family-owned oyster farm is a regional treasure, drawing thousands of visitors yearly. It produces forty percent of oysters harvested in California. Many of its 30 longtime employees live at the site with their families. Its operations have been praised over the years for environmental sensitivity.
Nevertheless, in fall 2012, bending to activist groups, the U.S. Department of the Interior refused to extend the 40-year lease allowing the oyster farm to harvest shellfish in the National Seashore.
Can federal bureaucrats terminate permits and licenses this way, and destroy historic businesses and people’s livelihoods, without the owners having any recourse to the judiciary?
Incredibly, the Ninth Circuit held, 2-1, that the courts may not review decisions against renewing leases on federal property. As my colleague, Pacific Legal Foundation attorney Tony Francois put it, “This is an astonishing grant of immunity to unelected bureaucrats. Regulators can’t be excused from having to explain or justify their decisions. And private citizens can’t be denied the right to challenge abusive regulatory actions.”
Amen to that. Unfortunately, the Ninth Circuit doesn’t agree. And the Supreme Court’s decision not to hear the case means that, for now at least, the Ninth Circuit’s assault on public-sector openness and accountability stands.
4. Court gives a pass to AB 32′s out-of-state meddling
California state officials are trying to crown themselves as the czars over fuel production from one end of the continent to the other.
Sad to say, the Supreme Court declined to take an important lawsuit – Rocky Mountain Farmers Union v. Corey – that sought to block this jaw-dropping power grab.
At issue is the innocuously titled, “Low Carbon Fuel Standard,” part of AB 32, the “Global Warming Solutions Act.”
It presumes to extend California’s regulatory reach far beyond the state’s borders by restricting the import of fuel into California if certain carbon emissions factors are exceeded.
Sacramento administrators will enforce the restrictions by monitoring emissions from processes and components in fuel production nationwide, including drilling, refining, storage, and transportation.
In other words, they’ll be pulling rank on all other state governments, by micro-managing businesses and the fuel supply chain from coast to coast.
For California motorists, this ego trip by officials in Sacramento translates into higher gas prices, because of the arbitrary limits on out-of-state fuel.
The Low Carbon Fuel Standard is a high octane challenge to our federalist system and the Constitution’s Commerce Clause. For the Supreme Court justices, it should have been like a red cape for bull. How disappointing that they were color-blind yesterday.
Bottom line: Yesterday’s High Court score was 2-2, an equal number of wins and setbacks for the cause of expanded individual freedom and prudent restraint on public power. For those of us whose mission is to litigate for liberty, it’s a reminder that achievement and success are (as someone – Jerry Brown? – has put it), a journey, not a destination.
There were landmark pro-freedom victories to toast yesterday, but the journey continues.
Originally posted at Fox & Hounds Daily.