It is not surprising that most leftist commentators are completely missing the boat on the Hobby Lobby decision. After all, one does not become a writer for The Nation or Mother Jones or DailyKos by being smart or knowledgeable. What’s troubling is that the White House seems equally clueless as to what actually happened today – although it’s still up in the air whether this is by incompetence or design.
White House Press Secretary Josh Earnest, speaking about the decision, sought to lend weight to the President’s own personal disagreement with the Hobby Lobby decision thusly:
Well, as the constitutional lawyer who sits in the Oval Office would tell you is, he would read the entire decision before he passed judgment in terms of his own legal analysis. What we have been able to assess so far … is that there is a problem that has been exposed, which is that there are now a group of women of an indeterminate size who no longer have access to free contraceptive coverage simply because of some religious views held, not by them necessarily, but by their bosses… We disagree and the constitutional lawyer in the Oval Office disagrees with that conclusion from the Supreme Court.
Leaving aside the question of whether it’s fair to say that Obama is still a constitutional lawyer, or whether he ever in his life was a practicing constitutional lawyer (as opposed to occasional moonlighting professor), there’s a slight problem with this particular Argument from Authority: the Hobby Lobby case is not a constitutional law case. It’s a statutory law case concerning the Religious Freedom Restoration Act. More concerning, however, was Obama’s response to the news, via Reuters:
#BREAKING: White House will consider whether president can act on his own to mitigate effect of Supreme Court contraception ruling
— Reuters Top News (@Reuters) June 30, 2014
This, you understand, is the exact problem with the procedure that got the contraception mandate struck down in the first place. The President has already acted on his own without Congress in this matter. That’s exactly how the HHS mandate came about. It wasn’t a Congressional mandate; it was by definition a unilateral move by the executive branch. If Congress had passed a statute that said exact same thing as the HHS mandate, the plaintiffs would have potentially been on much thinner ice, and if Obama really wanted to change the result he would attempt to pass a statute through Congress. In terms of acting by himself, without Congress, that’s literally what he just tried and failed to accomplish.
At this point, there are only two options: 1) the White House literally does not understand what happened today and its implications, or 2) it understands, and has just lost interest in actually governing the country in favor of growing the OFA email blast list. At this point, I can’t decide which possibility is more disturbing.