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Hobby Lobby Has Won: Now What? Less Regulation And Less Delegation By Congress

By on Jun 30, 2014 | 0 comments

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The Supreme Court today, in a 5-4 decision, found that closely-held corporations whose founders have religious opposition to the HHS contraception mandate, cannot be compelled to subsidize certain objectionable types of birth control in their insurance plans. The decision is a victory for the First Amendment and people who believe in religious liberty (or liberty in general), and those who supported the Religious Freedom Restoration Act (which was nearly every single person in the House, the Senate, and President Bill Clinton).

Many, many people have written about Hobby Lobby and the contraception prescriptions which they offer their employees, noting that 16 different birth control prescriptions are included in Hobby Lobby’s insurance plan. It’s difficult to imagine that someone can’t find the right birth control pill among 16 other choices. Moreover, the person who needs a non-covered type of birth control (read: abortifacient) can purchase it with their own money at a pharmacy. Despite the lefties’ mantra, Hobby Lobby does not prohibit the purchase of abortifacients–they simply won’t subsidize it.

Of course, the reason why we are here is because Obamacare was upheld as Constitutional by the same Supreme Court. It’s amusing watching those on the left who beat the Kumbaya drums and chanted “It’s. The. Law.” when the Supreme Court upheld Obamacare as constitutional, but want to set the world on fire when the same Court ruled in favor of Hobby Lobby and Citizens United.

There are two reasons why Hobby Lobby went to the Supreme Court: excessive regulation and delegation of duties by Congress. Both of these are anti-free market.

What do I mean by “excessive regulation?”

Obamacare is a gigantic set of regulations on all businesses. As readers of my column know, excessive regulations are a drag on business, particularly small business. Billions and billions of hours and dollars are wasted yearly on complying with ever-changing regulations. As I noted in, without Obamacare factored in, businesses spend $10,000 per employee complying with regulations. What could that business do with the extra $10,000? For starters, they could hire more people, or perhaps invest more in their business, creating more economic activity (and yes, more tax revenue).

Moreover, governments compile these regulations and then are tasked with enforcing them. Isn’t that a conflict of interest? Will a government that is tasked with enforcing regulations which they write ever write less regulations? I’d wager not.

Another facet of the problem with excessive regulation is that the FDA is the true limiter of birth control access. By requiring prescriptions for certain types of birth control pills, the costs are being inflated and access is “limited” (according to some) because of the fact that a prescription is required. Take away the requirement of a prescription and there will be more access to all different types of birth control pills. One would think that the left would be on board with de-regulation in this area, right?

The other free market issue here relating to the Hobby Lobby decision is the fact that Congress simply delegates too much authority to the Executive Branch. This is not something that is unique to the Obama Presidency. Indeed, Congress has delegated its authority for decades. This is fundamentally undemocratic (to use a term that I generally despise) and gives rise to major problems, including over-regulation. When Congress passes a statute which permits the Executive Branch to promulgate regulations for other parties to comply with, Congress could be seen as delegating its law-making authority to an unelected part of the Executive Branch. Moreover, as I outlined above, when the Executive Branch writes regulations that it will the enforce, the incentive to grow government (and government growth itself) can make a parabolic move.

If Congress wants to give the Executive Branch certain powers, it should be required to promulgate rules (with specificity) so that everyone who is voting for the legislation will have to go on the record regarding the regulations which the statute will create and support. Moreover, there will be (in theory) less litigation over what Congress “meant” when they passed a statute if Congress is more specific in its statutory grants and language. This is a fundamentally more democratic (or republican — with small “d” and “r”) approach to legislation. It also, in theory, will reduce regulations because less of our elected representatives will want to go “on the record” passing a law with very cumbersome regulations. There will be less of “passing the bill to find out what’s in it,” less regulation, and more accountability.

As always, free markets are better markets.

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Mike hails from New York City, where he practices law. He has an interest in advancing conservative and libertarian-leaning causes, which in his view have significant overlap. Mike spent his law school years in Texas, where he was instrumental in founding a chapter of the Republican National Lawyers Association. Mike has also served as the president of an international youth organization, where he was involved in lobbying American elected officials in support of various not-for-profit philanthropic causes.

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