Category: reason

The Trump administration has started forcibly collecting DNA samples from immigrants in detention and sending that information to an FBI criminal database called the Combined DNA Index System (CODIS) for permanent storage. Officials say this is a crime-fighting move. In reality, it is mass surveillance.

In 2005, Congress passed the DNA Fingerprint Act, requiring genetic testing of anyone arrested for a federal crime, regardless of whether they’re eventually charged and convicted. The Supreme Court approved this gross invasion of individual privacy in Maryland v. King (2013), ruling 5–4 that the law did not violate constitutional protections against illegal searches and seizures because the original arrest had required probable cause.

The DNA Fingerprint Act gave the Department of Homeland Security (DHS) latitude to exempt noncitizens from being sampled. There’s a very good reason for that: The vast majority of these folks are detained not because they have committed serious crimes with actual victims but because a harsh Clinton-era enforcement law vastly increased detentions for nonviolent immigration-related offenses. The Obama administration used this latitude to exempt immigrants from DNA sampling unless they were charged with another crime or were awaiting deportation proceedings. DHS Secretary Janet Napolitano pointed out at the time that taking DNA from the 30,000 immigrants who were then detained would pose “severe organizational, resource and financial challenges”—not to mention distract from actual crime-fighting.

The detained population has grown larger still, yet the Trump administration is arguing that these logistical concerns are outdated because the collection of DNA samples has become easier and cheaper. Customs and Border Patrol has gone ahead and launched pilot programs at several immigration centers around the country. Government estimates suggest that once the program is fully implemented, such centers will be sending 748,000 DNA profiles to CODIS every year. That’s more than the entire state of New York has contributed in more than 20 years, the American Civil Liberties Union’s Vera Eidelman noted in USA Today.

When the Justice Department issued the rule creating the pilot program in March, it insisted that even if immigration detainees have committed no crimes at the time they are booked, having a permanent DNA record makes it easier to track them if they do so once allowed to remain in the country or upon re-entering without authorization later.

By this logic, which basically overturns the presumption of innocence, DNA testing could be forced on all American citizens. Anyone, after all, could commit a crime at some point in the future. That’s why everyone should be concerned. They’re starting with immigrants, but they might not end there.

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Illinois boaters are baffled and upset by an order that doesn’t allow more than two people in a boat on the water, even if those people are family members who live together. It’s one of a number of social distancing rules enacted by Gov. Jay Pritzker to reduce the spread of the coronavirus. “You can’t have five people or 10 people in a boat—and that—it is restricted to two but not necessarily restricted to whether they’re related to one another,” Pritzker said. And no more than two people may be in a boat even if it is large enough for them all to remain 6 feet apart.

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The coronavirus did apparently originate in China. Now President Donald Trump wants to punish that country for its role in letting the virus spread to the United States. This is just another poor excuse to push the same protectionist policies he has always favored. It’s also a way for him to deflect responsibility for the failures of his own administration and the many agencies that intrude daily into our lives.

Trump’s administration is reportedly exploring the exact details of potential punishments to inflict on China. Among the options being discussed by senior U.S officials are $1 trillion in tariffs on Chinese products and canceling part of the U.S. debt obligation to China. While both of these options may hurt China, when all is said and done, Americans will be hurt the most.

This is true even though the Chinese government unquestionably covered up the COVID-19 outbreak and failed to take important measures that could have reduced the virus’s spread. While there may be a constructive way to put China on notice, if blame is the name of this game, there’s plenty to go around. For instance, some could blame Trump for buying the early Chinese propaganda, as he did in his Jan. 24 tweet: “China has been working very hard to contain the Coronavirus. The United States greatly appreciates their efforts and transparency. It will all work out well. In particular, on behalf of the American People, I want to thank President Xi!”

Trump is also much to blame for the fact that the trade war he started with China has reduced Americans’ access to many essential medical supplies to fight the pandemic, including thermometers, face masks, medical-grade personal protective gear, and hand sanitizer. It’s not for lack of being warned. Economists, health care professionals, and even lobbyists all told the president that his tariffs would create shortages and higher prices. The president refused to listen. Now Americans and health care professionals on the frontlines are paying an exorbitant price.

Of course, some blame also belongs to the Centers for Disease Control and Prevention and to the Food and Drug Administration. The first of these agencies is supposed to protect us from this kind of pandemic, while the other is supposed to oversee the production of the drugs, vaccines and technologies that could save us from this nightmare. Let us never forget the crushing events that are unfolding before our eyes and the lives lost to this virus. Some bureaucrats at each agency spread misinformation and displayed a certain level of incompetence.

For instance, CDC employee emails obtained through a Freedom of Information Act request reveal that on Jan. 28, CDC director Robert Redfield sent emails to his employees to inform them that “the virus isn’t spreading in the US at this time.” In reality, it was indeed spreading and had been for weeks. A month later, the CDC was still telling state and local government officials that its “testing capacity is more than adequate to meet current testing demands.” It wasn’t. One day, we were supposed to wear masks; the next, we weren’t; then we find out that, yes, we should wear masks.

In truth, the CDC and the FDA did their most destructive work when they worked as a tag team. While the FDA prevented private and academic development of COVID-19 tests for weeks, the CDC arrogantly denied Americans access to functioning foreign tests only to produce its own defective tests. If time was of the essence to reduce the number of people infected and killed by the virus, the CDC and the FDA only prolonged the testing process when they should have been expediting it. The result has been to force most Americans into their homes voluntarily or under state government mandates, with no hope of getting out because of the lack of testing.

I could go on. The bottom line is that the Chinese government behaved like we expect such an authoritarian regime to behave. Only our president seems to be surprised by that. However, American public officials—including all the members of Congress who passed a poorly designed and massive spending bill—deserve a lot of the blame for the way they behaved during this crisis, too.

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At several points during oral arguments in Little Sisters of the Poor v. Pennsylvania, Justice Ginsburg stated that the ACA requires “seamless” coverage of contraception.

JUSTICE GINSBURG: The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage. Seamless, no-cost, comprehensive coverage….

And I just wonder if I –if there is no substantial burden, how can the government justify an exemption that deprives those women of seamless coverage? …

JUSTICE GINSBURG: I would ask Mr. Clement the same question I asked the government. The –at the end of the day, the government is throwing to the wind the women’s entitlement to seamless, no cost to them.

The word “seamless” does not appear anywhere in the ACA. (Indeed, the ACA makes no mention whatsoever to contraception.) The Obama administration adopted that phrase from Judge Pillard’s decision in Priests for Life v. HHS (2014).

“The accommodation is the least restrictive method of ensuring that women continue to receive contraceptive coverage in a seamless manner while simultaneously relieving the eligible organizations of any obligation to provide such coverage.”

Then-Judge Kavanaugh dissented in that case. (See pp. 509 of Unraveled.) 

Later in the arguments, Clement explained that the demand for “seamless” coverage made a resolution impossible:

MR. CLEMENT: I –Mr. Chief Justice, in the wake of the Zubik remand order, there was a lot of back and forth between the religious objector –objectors and the government, and I don’t think that there really was a mechanism to find sort of some third way because the government has always insisted on seamless coverage, with seamless, essentially, being a synonym through –for through the Little Sisters’ plans.

So long as supporters of the mandate demand “seamless” coverage, there really is no way to work out this conflict. Clement made this point:

Clement: I don’t think that there really was a mechanism to find sort of some third way because the government has always insisted on seamless coverage, with seamless, essentially, being a synonym through –for through the Little Sisters’ plans.

That argument works with another employer who does not use a church plan.

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Today the Supreme Court heard oral arguments in Little Sisters of the Poor v. Pennsylvania. It felt like déjà vu. Three year ago, I was in the Court for arguments in Zubik v. Burwell. (The Little Sisters had a companion case.) The short-handed Court punted the case, hoping that the political process could work the case out. (I wrote about that decision here.) Three years later, the political process still has not worked the case out. Chief Roberts may be eyeing another middle ground. And it is a familiar option.

The Accommodation and the Exemption

Let’s start with some terminology. There are two relevant carveouts from the contraceptive mandate: the accommodation and the exemption. Under the accommodation, employers do not have to pay for contraceptive coverage. Instead, they can opt-out of paying by signing a form. Then, in most cases, the insurer would pay for the coverage. Female employees would still gain access to contraception. Under the exemption, employers could opt out altogether. Female employees would not gain access to contraception. The Obama administration gave the exemption to houses of worship, but the accommodation to religious non-profits.

In Hobby Lobby, the Court found that the mandate violated RFRA. The Court found that that the “accommodation,” which had originally been give to religious non-profits, may also work for the for-profits.

As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections….We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.

As far as I am aware, for-profits like Hobby Lobby are content with the accommodation. (SG Francisco hinted at this point.) However, religious non-profits like the Little Sisters seek the full exemption.

Resolve Those Differences

At several junctures, the Chief expressed frustration that the parties could not “resolve” their “differences.” Roberts asked Paul Clement:

CHIEF JUSTICE ROBERTS: Well, the problem is that neither side in this debate wants the accommodation to work. The one side doesn’t want it to work because they want to say the mandate is required, and the other side doesn’t want it to work because they want to impose the mandate. Is it really the case that there is no way to resolve those differences?

Justice Breyer sounded a similar tone of frustration.

I really repeat, if there’s anything you want to add, the Chief Justice’s question. I don’t understand why this can’t be worked out.

RFRA Theory Sweeps Too Broadly

At the outset of the case, Chief Justice suggested to SG Francisco that the government’s RFRA theory would “sweep too broadly.”

JUSTICE ROBERTS: –before you get to that, I’d like to ask you a question on your RFRA point. I wonder why it doesn’t sweep too broadly. It is designed to address the concerns about self-certification and what the Little Sisters call the hijacking of their plan.

But the RFRA exemption reaches far beyond that. In other words, not everybody who seeks the protection from coverage has those same objections. So I wonder if your reliance on RFRA is too broad.

In other words, the new rule went far beyond exempting the Little Sisters. It also exempted people who may not share their religious beliefs.

Justice Kagan returned to that theme during her time.

JUSTICE KAGAN: –the Chief Justice’s first question, which was about whether this rule sweeps too broadly. And I understand your concern about giving agencies some leeway so that there’s –they don’t have to think through thousands of accommodations in their head and then find the narrowest one possible for every person. But that’s not really the situation we’re in with respect to this.

There was an existing accommodation in place, and some employers had objections to that accommodation, the Little Sisters and some others. And even assuming that those objections needed to be taken into account, the rule sweeps far more broadly than that and essentially scraps the existing accommodation even for employers who have no religious objection to it.

And sort of by definition, doesn’t that mean that the rule has gone too far?

SG Francisco replied that the accommodation was not scrapped. It is still available for employers that request it. Kagan was skeptical.

JUSTICE KAGAN: —do you have any evidence that the current exemption is being taken –availed –that only employers of the Little Sister kind who have complicity objections are now taking advantage of the exemption? I would think that there would be a lot of employers who would say, you know, we don’t have those complicity beliefs, but now that they’re giving us an option, sure, we’ll take it.

SG Francisco answered that would be irrational. Firms like Hobby Lobby would be happy to accept the accommodation.

GENERAL FRANCISCO: Your Honor, I respectfully think that that would be irrational, given that employers would then be depriving their employees of a valuable benefit that doesn’t cost them anything, because it doesn’t cost any money to add contraceptive coverage to an insurance plan. It’s a cost-neutral coverage provision.

“Cover only those who have objections to the existing accommodation”

Then, Kagan offers an alternate version of the rule:

JUSTICE KAGAN: But why couldn’t you just have just have written the rule to cover only those who have objections to the existing accommodation? In other words, those who have these complicity-based beliefs that the Little Sisters have?

Francisco replied that the government should have “flexibility in the face of potentially competing statutory obligations.” The Chief cut him off mid-sentence.  Justice Gorsuch, who was up next, asked “to hear the rest of your answer.” Francisco continued:

I think we at the very least have a strong basis for believing that the prior regime violated the Religious Freedom Restoration Act, and that gives us the discretion to adopt a traditional exemption, which, after all, is the type –is the way that the governments have traditionally accommodated religious beliefs.

And I think that’s particularly clear here since, one, RFRA both applies to and supersedes the ACA, and, two, even if you don’t think that the ACA authorizes exemptions, even though we think that they –it does, there’s nothing in the ACA that prohibits exemptions.

Clement suggests the rule may be different for non-profits

Later in the argument, Justice Breyer asked a long question about the APA. Then he expressed frustration that the plaintiffs did not raise a substantive APA challenge:

JUSTICE BREYER: Now you have interests on both sides. The question is whether this is a reasonable effort to accommodate. And that, I think, is arbitrary, capricious, abuse of discretion, but that is the one thing that isn’t argued before us in these briefs or in this appeal.

So what do I do?

Clement’s addressed that point. In doing so, he hinted at Justice Kagan’s middle ground.

CLEMENT: That is not the nature of the challenge. They haven’t brought that kind of substantive APA challenge. So I think what you would do is you would reject the challenge that is before you, because I don’t think any of the grounds that have been litigated before you are valid, and you could make clear in your opinion that if somebody down the road has an objection to the scope of the exemption, say they work for a for-profit company and with respect to that for-profit company, they’re not getting their services and they think that’s because the APA –because the –the rule here is too broad, that would be a separate APA challenge that I don’t think rejecting the challenge here would foreclose. So I think that’s the –the path forward.

Here Clement is talking about an employee of a for-profit company, like Hobby Lobby. Clement suggests that this employee could bring an as-applied APA challenge. Though the new rule may be reasonable for groups like the Sisters, it may not be reasonable for for-profits like Hobby Lobby. Clement represented Hobby Lobby, so he is in a unique position to draw this distinction.

Later, Justice Gorsuch asked Paul Clement about the APA. And once again, Clement distinguished the analysis between non-profits like the Sisters and for-profits like Hobby Lobby.

MR. CLEMENT: And there’s an obligation on HRSA to take into account RFRA as well as its authority under the ACA. And so it seems to me that an exemption for religion –that of the kind that’s in the final rule here, I think, is going to be insulated from an arbitrary and capricious challenge in a way that exempting, say, just large employers or employers incorporated in Delaware. I think all of those would be irrational and –and arbitrary and capricious under the –under the APA. But, here, the -the agency has complied with RFRA consistent with its authority under the ACA, which seems to give it a particularly strong case for its actions here to not have been arbitrary and capricious.

Once again, Clement is willing to treat for-profit employers differently. It would be irrational to exempt “large employers.” But rational to exempt religious non-profits.

Do these concessions provide a middle ground?

Exempt all religious non-profits; accommodate the rest

I filed an amicus brief for the Cato Institute and the Jewish Coalition for Religious Liberty. We made arguments about the non-delegation doctrine, which are not relevant here. (I’ll be happy for a cite by a Thomas or Gorsuch concurrence.) But we did raise one relevant point: the Obama administration was out of its league to give the exemption to houses of worship, but saddle religious non-profits with the accommodation. We wrote:

The only available remedy for those whose free exercise is substantially burdened by the enforcement of the statute is an exemption, not a half-hearted accommodation. See Blackman, Gridlock, supra, at 254–256 (contrasting the different ways in which the executive branch and Congress can accommodate RFRA violations). The expanded exemptions were a reasonable way to accomplish that goal

Our position focused on those “whose free exercise is substantially burdened.” We thought the blanket exemptions were “reasonable,” but not the only way to proceed.

I think Kagan, and perhaps Roberts, may be hinting at this middle ground. First, the government’s RFRA theory is too broad. People are exempted who may not share the Sisters’s steadfast religious beliefs. Second, Zubik held that the Obama administration’s exemption/accommodation dichotomy was too stingy. Perhaps the middle ground is what Kagan suggested: “Cover only those who have objections to the existing accommodation.” In other words, exempt all religious non-profits who raise these objections, and give the accommodation to the rest.

How would this opt-out work? The non-profits could be asked if the accommodation substantially burdens their free exercise. If the answer is yes, they would be exempted. I do not think groups like the Sisters would object to this burden. Indeed, they have told courts for nearly a decade they have religious objections to the mandate. The Sisters can attach an appendix to their opt-out form.

How should the Court proceed? A remand back to the agency would be counter-productive. The issue would be tied up in litigation for years. “This case, in litigation for [almost] a decade, has gone on long enough.”

Could this outcome be accomplished without a remand? Yes. Indeed, there is a precedent close at hand. On January 24, 2014, the Court issued an order in Little Sisters of the Poor v. Sebelius. That case effectively modified the opt-out regime for the Sisters. It provided:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

I offered this description in Unraveled (p. 245):

Simply stated, if the Little Sisters notify the government in writing that they “have a religious objection to providing coverage for contraceptive service,” which they obviously do, they are exempted from the contraceptive mandate altogether.

The Court could simply enter the same order from 2014, as part of the permanent rule. Or, as Justice Kagan said, “Cover only those who have objections to the existing accommodation.” The Sisters would be exempt. And Hobby Lobby would be accommodated.

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