Hobby Lobby is About Sex, not Abortion

One of the questions in the Hobby Lobby litigation was whether the exemption sought by these companies could be extended to things other than contraception. Could companies whose owners held somewhat less mainstream religious beliefs decide to stop covering, say, blood transfusions, or vaccines? Could religious "freedom" become a shield for racial discrimination? Nope, says Justice Alito. The ruling is strictly limited to contraception. Other medical things like transfusions or vaccines he essentially said would have to be considered in later cases, and might or might not survive the same test that the contraception mandate failed. And he specifically said that racial discrimination in employment practices cannot find support in this decision, that the government's interest in eradicating that evil is strong enough and direct enough that "religious freedom" is no shield against it.

Kevin Drum comments that the logic behind limiting the decision to contraception seems to be about abortion:

I think it's important to recognize what Alito is saying here. Basically, he's making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you're probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way—as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons—it will be treated with the utmost deference.

I don't think that's quite right.

Hobby Lobby and the Sanctity of Human Life

Ugh. Not a good day for the law. Not on any dimension. The policy of these decisions is horrible. Admittedly it's not as horrible as it could have been had Alito not decided to write deliberately narrowed opinions. But the price of that narrowness was absolute legal absurdity. I mean, there was plenty legal absurdity anyway, but the narrowness created even more. I don't really think it's possible to maintain that what the Court was doing today was law. Not really. And that actually offends me pretty deeply, as someone who believes that there is such a thing as doing law, for real, in the best sense of that word.

But here's a slightly ancillary thought I have about the Hobby Lobby decision. The purported reason why providing coverage to their employees that included contraception would have violated Hobby Lobby's religious beliefs is that certain forms of contraception were, in the store's owners' view, abortifacients. And we all know that opposition to abortion is that most sincere of religious beliefs; religious people of a certain type are committed to seeing abortion as murder, because they supposedly value the sanctity of human life. And, y'know, I gotta say, I see the ethical case that late-term abortion is something seriously resembling murder, or rather homicide (the difference being that the former assumes the wrongfulness of the act). I have pretty good reasons, I think, for not thinking this means we should criminalize it, although I do think there might be ways to regulate late-term abortions in some way. But I do think we should view late-term abortions as a pretty serious moral Bad Thing, and work hard to minimize the frequency with which it's the least-bad option.

But that's not what Hobby Lobby is about. Hobby Lobby is about birth control. It's about IUDs, which prevent the implantation of a fertilized egg on the uterus wall. This, like a few other forms of birth control (but unlike, say, condoms), prevents pregnancy after the moment of conception rather than before it. It operates at the post-zygotic stage. And therefore certain religious types, though apparently not the medical or legal community, consider it to cause an abortion, and to end a human life. (Apparently scientific types think life begins at implantation or something.) Here the ethics aren't so complicated: the ethical badness of destroying a pre-implantation zygote is precisely zero. It's the same thing as killing a bacterium. It has one cell. It has no computing power, no sensory apparatus. It does not have experiences. It cannot feel pain. It does not have a beating heart. It differs in this regard, of course, from later-stage fetuses, but zygotes and blastocysts are just ethical nullities.

Now, my point could be that it's ridiculous, and kind of sick, to think that destroying one of these nullities is the same thing as killing a living human being. But it isn't. Rather, my point is that it is deeply sick to think that killing a living human being is the same as destroying one of these nullities. That is to say, I don't think it's really possible that anyone at all reacts to the death of a blastocyst or a zygote the way one is supposed to react to the death of a human being. I do think it's possible that people react that way to the death of an eight-month fetus or whatever, and at some point in between it flips, but let's just say that that point is sometime after there are at least 16 cells in the organism. And so if you maintain that you view the two as equivalent, that you think IUDs are murder, well, that's gotta tell us something about how much respect you have for, like, ordinary human life, right? And it tells us nothing good. I think it's gotta tell us that the sense in which you condemn ordinary murder is somehow cheaper than it should be. If the value that you place on human life doesn't change from the moment of conception all the way through the moment of death, I don't think that value can be as high as the value that I place on human life from birth through death. There's just no way you can actually be giving that much value to a zygote, not really. Maybe you have some kind of theological sophistry telling you that killing zygotes is sinful, but you can't really believe that aborting them is murder, not the way we mean that word.

So either there's an act of dishonesty going on, at some level, when people say they think these contraceptive devices cause murders, or these religious types have just tipped that their conception of the "sanctity of human life" is awfully shallow. One or the other, and neither is exactly great.

Judicial Review As Legitimation In Action!

One of my favorite arguments that's presented in my grandfather's book The People and the Court, which is a defense of the legitimacy of judicial constitutional review in a democracy, is about the way courts can serve a legitimating function. That is, if there's a law whose constitutionality, and thus legitimacy, is in controversy, having it subjected to rigorous judicial review and then get upheld can settle a lot of doubts about its constitutionality and thus legitimacy. The institution of judicial review, then, should significantly increase the confidence of the people that those laws which are being implemented are in fact constitutional and legitimate. It's a really cool theory. It's also the kind of thing you can imagine not happening in practice. (For example, I don't think very many Republicans were convinced by NFIB that the Affordable Care Act is in fact constitutional, although I know of only one Republican type who has anything particularly clever to say about why John Roberts' tax argument is wrong.)

Well, here's an example of it happening in practice. From Kevin Drum's latest piece about how using the Authorization for the Use of Military Force from just after 9/11 as the legal justification for various War on Terror-related activities isn't really okay anymore:

If Congress wants to give the president that power [of targeted killings of American citizens like al-Awlaki], it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Just like that! That's exactly what's supposed to happen. The Court declares it unconstitutional, and people accept it as legitimate. Even if they don't like it, they accept it. Just so!

Of Course Delegation Is Necessary

For the work I'm doing I've been skimming through The Constitution of Empire: Territorial Expansion and American Legal History, by Gary Lawson and Guy Seidman. In particular I'm interested in the discussions, scattered throughout the book, of the Necessary and Proper Clause, which the authors consistently refer to as the "Sweeping Clause." (This is interesting, because Lawson has written a different article in which he argues at great length that the Necessary and Proper Clause is not sweeping, that it in fact borrows certain very specific standards from agency law. Anyway.) In the course of this skimming I came across this passage:

There is no express "Nondelegation Clause" in the Constitution that forbids Congress from delegating legislative power. Neither, however, is there an express "Delegation Clause" that permits Congress to delegate legislative power. The latter conclusion is more important under the principle of enumerated powers. The President and courts generally cannot exercise legislative powers on their own initiative because they are not granted any such powers by the Constitution; they are granted only the "executive Power" and the "judicial Power," respectively. But what if Congress passes a statute that says, in essence, "the President shall exercise legislative power with respect to X." If the President obeys that command, isn't the President simply executing the law in fine Article II fashion? That would be true if the Constitution authorized Congress to pass the relevant law. Congress, however, generally cannot delegate legislative power for the simple reason that the Constitution does not affirmatively authorize such delegations. The only possible source for a general power to delegate would be the Sweeping Clause, but delegations of legislative power are not "necessary and proper for carrying into Execution" federal powers and therefore are not authorized by the Sweeping Clause.

That's a very interesting theory of the Non-Delegation Doctrine, and probably a more plausible one than I've heard before. Except it has a problem, which is the last clause of the paragraph. Who says delegation isn't necessary and proper for carrying the federal powers into execution? Gary Lawson and Guy Seidman, apparently. Now, it's possible that they have some quasi-tautological argument in mind here, that delegation can never be necessary because Congress could've just made the relevant laws itself. If so, well, that's quasi-tautological so there's a limit to how much I can argue with it. But, look, in the modern world, and arguably in any world ever, delegation absolutely is necessary. There's a reason why literally every single modern government, including democracies both presidential and parliamentary, feature massive bureaucracies which exercise considerable delegated lawmaking power. You just can't have the actual national legislature making every tiny little rule. Life is too damn complex and (with good reason) the processes for passing acts of Congress/Parliament are too onerous to be used for that purpose. In practice the only viable alternative to actual legislative delegation is de facto delegation; that is, the adoption of the routine practice of having things that aren't Congress write up laws and have Congress pass them as a matter of course, waiving all the usual procedural hurdles that make that difficult. That's not really very different. One way or another, lots of laws are going to be made through something other than what we think of as the main legislative process. That seems to be, as a matter of practical experience, as absolutely necessary for carrying the powers of government into execution as anything else.

Now, there's also that pesky word "proper." I suppose someone could try to say that delegation of legislative authority is "improper," because delegata potestas non potest delegari. But that doesn't feel like much more than a tautological ipse dixit: X is improper because X is improper. Delegation doesn't seem to violate any express prohibition in the Constitution, as the above quote notes, though I suppose in certain contexts one could try to make out a Due Process violation. Lawson himself has an interesting theory of what the "proper" means, again drawn from his agency theory of the Clause, where it basically means that things the agent (Congress) does must be in the interests of the principal (the people). Under that standard it seems obvious that lots and lots of delegation can be proper, if we accept the conclusion above that it's necessary for having a well-governed regime. Add it all up and I don't really see how, except by simply deciding to read the NDD into the word "proper," one can avoid the conclusion that the Necessary and Proper Clause authorizes a hell of a lot of delegation.

Baseball's Real Exclusion of Women Problem

Last week Bradley Woodrum wrote a very interesting article on The Hardball Times called The Physical Obstacle for Women in Baseball. Unsurprisingly, it's a well-researched and thorough analysis of why it's going to be very, very hard for there ever to be a woman playing in Major League Baseball, even though (as the author and I agree) it would be very, very awesome if one ever did. There is, of course, a lot to say on this subject, much of which he said and much of which other people have said. The main thought I had, however, wasn't about players at all, because the thing about players is that there really are physical limitations that mean that the pool of MLB players will never be any less than about 99.9% male, if it will ever be less than 100.0% male. But, uhhhh, not everyone in baseball is a player, and the people who aren't players are not being paid to take part in a physical competition against the world's best men at said competition. They're being paid to coach those people, or to assemble teams of those people. (Or to do various lower-level jobs within the organization, but let's focus on the coaches and front office people for now.) As to all of these people, there is no particular reason why having lesser physical strength should be a particularly strong disadvantage, or even any disadvantage whatsoever. So you'd think that women could maybe do these jobs. Nope. Or at least, they aren't doing these jobs. Thirty MLB teams, thirty male managers, thirty male general managers (actually a bit more; some teams have divided general manager positions), and to the best of my knowledge, zero female coaches.

This is inexcusable. Not the managers and coaches thing--that I'm skeptical of, but I wouldn't go so far as to call it "inexcusable," necessarily. There might be some genuine social problems with having female managers, although I'm not sure. Some of that might be the kind of thing the correct attitude toward which is just to trample over it and insist that it change, e.g. the resistance of a certain type of man to take orders from a woman. Get over it, guys. Other stuff about, like, locker room issues and the like might be a bit less repugnant on its own terms, but might also be the kind of thing that isn't or shouldn't ultimately be a big deal. But there might be some real problems, here in the all-too-terrible real world, problems that will also confront any woman who tries to play in MLB or in any other male professional baseball league but which should be less theoretically intractable than the basic physical differences.

But let's talk about general managers. They head the front office. That is to say, they do not travel with the team, they are not constantly in the clubhouse, they probably don't spend a lot of time in the locker rooms or the showers or slapping the players on their asses. Oh, and unlike the players' job, which is famously ninety-percent half-mental, the GM's job is one-hundred percent mental, full stop. At root a GM is a combination of an information processor and a merchant. There's sod all reason why a woman couldn't be exactly as good a GM as any man. I don't see how an ideal world wouldn't have 15 male and 15 female GMs, plus or minus some margin for random deviations any given year. We have none. It's obscene. Now, people will say that a GM should have experience in the game. Maybe, but Sandy Alderson, commonly considered one of the best front office-type baseball minds alive, never played professional baseball, while Ruben Amaro, Jr., commonly considered one of baseball's worst GMs, spent eight years in MLB. Of course, Billy Beane, another of the best GMs out there, did have a Major League career, while Dayton Moore, another of the worst, did not. It looks to me like there's not a whole lot of correlation there, that stuff other than whether you have experience as a baseball player determines who's a good GM. This might be particularly true given the whole trend toward statistically-inclined GMs: certain sexist beliefs to the contrary notwithstanding, women can actually do statistical analysis just about as well as men can. They can also probably hire equally good scouting directors, and utilize the information those scouting directors give them equally well.

So again, we're left with precisely zero reason why a woman shouldn't be the GM of some team. None whatsoever. And yet, "none whatsoever" is also the number of female MLB GMs. There's just no justification for this. We'll never change the fact that all or virtually all MLB players are gonna be men; that's basically a fact of life. The lack of female executives in baseball isn't. We can change that, and we should.