Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, June 14, 2019

Law’s Abnegation — SCOTUS 2019 Edition

 

I’m moved, perhaps unwisely, to lay down a marker about the opinions SCOTUS will soon release on administrative law and executive power - to lay my bets before the wheel has stopped spinning. The main pending cases are Gundy v. U.S., the nondelegation case; Department of Commerce v. New York, the census case; and Kisor v. Wilkie, the case asking the Court to overturn Auer deference (aka Seminole Rock deference) to agency interpretations of their own regulations. My suggestion is that if the administration does well across the triptych, broadly speaking, it will mark a distinct failure for the recent wave of critiques of the administrative state, and a salient confirmation of the long-run unfolding of law’s abnegation to the administrative state.

It is entirely possible that the administration will prevail, in some sense, in all three cases, or at least prevail in some and fight to a draw in others. To be sure, the conditions of “victory” are not well-defined in all the cases. In Kisor v. Wilkie, for example, should the Court limit or curtail Auer deference without eliminating it altogether, whether the government will have “won” is a complicated question. The answer depends on what one thinks the administration’s real objectives were and what one’s baseline expectations were. Nonetheless, given the wild-eyed excitement in certain libertarian-legalist quarters about the prospect of overruling first Auer and then Chevron itself, anything less than a clean overruling in Kisor will certainly count as a defeat for the libertarian campaign against the administrative state. If Auer can’t be cleanly eliminated, it seems exceedingly unlikely that Chevron can be. Likewise, in the census case, it is possible, although not likely, that the Court will in effect deny victory to both sides for the time being, by sending the case back to the lower courts to examine recent claims of newly-discovered crucial evidence.

So suppose that the government wins in Gundy, over nondelegation dissents from Justice Thomas and one or two others; that Kisor does not squarely overrule Auer; and that the census case ends either in the government’s favor or in a procedural postponement. (In a variant, one could imagine a plurality opinion in Gundy upholding the delegation, joined on narrower grounds by, perhaps, the Chief Justice and Justice Kavanaugh, with dissents from their other conservatives). If anything like this scenario comes to pass — a scenario in which the decisions are, by and large and taken as a set, weighted in favor of administrative power — it will extend and confirm a trend going back to the end of the Obama administration and before: excited talk about reining in executive and administrative power usually turns out to be no more than talk.

What major victories have the forces of retrenchment won, exactly, in recent memory? King v. Burwell? Let us recall that the decision, in the end, rejected a serious challenge to the Affordable Care Act. Perhaps the best candidates are the decisions in Michigan v. EPA and Encino Motorcars v. Navarro. The former, however, is limited and ambiguous, while the latter is banal. Relative to the breathless expectations created (sometimes artfully) on social media and in law reviews about imminent decisions curtailing the administrative state, all this amounts to thin gruel. The great retrenchment, much discussed and anticipated, always seems to recede into a vividly imagined future.

Indeed, one might go farther to argue that the main effect of the recent wave of libertarian litigation aiming to restrict executive and administrative power has actually been to further clarify, strengthen and entrench such power — a perverse result from the standpoint of the administrative state’s critics. In the case of presidential power, recent landmarks here are Trump v. Hawaii, the travel ban case, and Zivotofsky II, the Jerusalem passport case. Both are among the most expansive statements of presidential power in the Court’s recent history. Both were essentially own-goals on the part of forces who hoped to create a precedent going in the other direction, and whose second choice would certainly have been no precedent at all, rather than a clear precedent in the wrong direction. If the opinions soon to be delivered, taken overall, have even roughly the same character as to agency authority, then the perversity of forcing the Court to clarify and confirm the scope of executive and administrative power will be all the more obvious.

(Postscript: This post isn’t quite as rash as it seems. The betting here is, I believe, rigged in my favor. As an unscrupulous rhetorician, I would of course refuse to acknowledge that even clear losses for the administration in all the forthcoming cases would amount to a serious blow against law’s abnegation. Take Gundy, for example: should the Court dramatically invalidate (part of) a statute on nondelegation grounds, for the first time since 1935, I will immediately claim that the statutory provision at issue was of relatively little consequence, and that Gundy is best seen as a nondelegation version of Lopez, the case that invalidated the Gun-Free School Zones Act as beyond Congress’ commerce power — a relatively low-stakes case that proved to be largely symbolic, and that hardly lead to a sweeping retrenchment of the Commerce Clause. This unscrupulous argument will be all the easier in that I believe it to be true).

Notre Dame Program on Church, State & Society Newsletter

The Program on Church, State & Society just published our summer newsletter.  You can read it here:

https://mailchi.mp/44c57fefee98/fall-2018-news-from-the-program-on-church-state-society-2698321

To be added to our email list and receive future newsletters, one can subscribe here:

http://eepurl.com/gtZ841

 

Thursday, June 13, 2019

Good News/Bad News on Legalization of Assisted Suicide

Bad news: 

Maine's Governor Janet Mills signed the bill that  had passed in both chambers by narrow margins that legalizes assisted suicide in that state,  joining California, Colorado, DC, Hawaii, Oregon, Vermont and Washington. This law was opposed by, among others, a coalition of disability advocacy groups  in an open letter to Governor Mills that ends with the argument:

There are ways to address the reasons people have for requesting assisted suicide, but it starts with a societal commitment to treat all suicides as a tragedy, to respond to anyone’s expression of suicidal feelings with an equal level of support, affirmation of the value of their life and effort to address their concerns. A two-tiered system where most people get suicide prevention but certain people get suicide assistance is a deadly form of discrimination that should not be accepted. Assisted suicide laws exacerbate the disability stigma that prevails in our culture and undermine people’s genuine autonomy by establishing a medically administered program of suicide approval and assistance in a health care environment already riddled with pressures to cut costs of care.

The letter was signed by the following groups:

  • ADAPT
  • American Association of People with Disabilities
  • Assn of Programs for Rural Independent Living
  • Autistic Self Advocacy Network
  • Disability Rights Education and Defense Fund
  • National Council on Disability
  • National Council on Independent Living
  • National Organization of Nurses with Disabilities
  • National Spinal Cord Injury Association
  • Not Dead Yet
  • TASH
  • The Arc of the United States
  • United Spinal Association

Good news: The American Medical Association (AMA) upheld its long-standing opposition to assisted suicide by a vote of 392-162, holding that:

“Physician-assisted suicide and euthanasia are fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”

Wednesday, June 12, 2019

DoJ Files Statement of Interest in Maine First Amendment Case

The Department of Justice filed a Statement of Interest in the U.S. District Court for the District of Maine supporting students who claim that the State discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution when it barred them from a program paying the public or private school tuition of students who do not have public schools in their school districts, because the students wish to use the tuition to attend private religious schools that otherwise satisfy State education requirements. 

The full press release can be found here.

For background on the Blaine Amendments, Rick Garnett’s article The Theology of the Blaine Amendments can be found here.

Tuesday, June 11, 2019

To Fr. Jim Martin, a good and kind man--and my friend



Dear Fr. Jim: Twitter is probably not the best place for the discussion I’d like to have, but I would like to make a few points here in defense of Pope Francis and of the teachings of the Church that are strongly reinforced in the recent document about which you, in your laudable compassion, have expressed reservations and concern.

Among the greatest achievements of Christianity is its thoroughgoing rejection of the separation of self and body that one finds in, for example, Platonism, Cartesianism, and (most pertinently) various forms of gnosticism—ancient and modern. The temptation to embrace such separation is perennial, but the Church has always resisted it and borne faithful witness to the unity of the human person—body and spirit. We human beings are not “ghosts in machines.” We are our bodies (whatever else we are) and do not merely “inhabit” them and use them as extrinsic instruments of the supposed “real self,” considered as the psyche, spirit, or soul. The body, male or female, far from being a subpersonal object to be used and even manipulated by the “self” or “person,” is part of—an irreducible aspect of—the personal reality of the human being.

This understanding of the human person—this philosophical anthropology—undergirds the moral truths proclaimed by the Church, including (among many others) those pertaining to marriage and sexual morality, and to the sanctity of human life. To reject it is to cut the rug out from under those truths. It is this anthropology that is at stake in the debate over sexual or gender identity. To affirm that the human person is his or her (male or female) body is by no means to suggest that persons who experience gender dysphorias “do not exist.” Nor is it to suggest that such persons are anything less than bearers of profound, inherent, and equal dignity, precious brothers and sisters who deserve to be not only respected, but loved and cherished.

To respect, love, and cherish a person, however, does not require us—and sometimes does not permit us—to endorse their philosophical or ideological beliefs or, a fortiori, to affirm choices they may make in light of those beliefs. A standard rhetorical move one encounters when one makes this point is the claim that a person’s “truth” (especially the truth about his or her “identity”) is established by his or her “lived experience.” But experience (including “lived experience”) is not self-validating. To suppose otherwise is to fall into a form of subjectivism that Christianity, Judaism, Islam, and, indeed, all sound philosophy firmly rejects. Our feelings are real, but they do not determine reality—even the reality of one’s identity as a human being. A dysphoria, whether it is a gender dysphoria or a dysphoria of another type, may cause a person sincerely—and intensely—to feel that he or she is something other than what he or she is, but it cannot make him or her into what he or she feels he or she is. Feelings are indeed subjective; but fundamental anthropological truths are objective.

Of course, to disrespect someone who experiences a dysphoria of any type, including a gender dysphoria, is wrong. To ridicule, mock, or taunt someone who is trying to deal with a dysphoria, is cruel and grotesque. It is, indeed, unChristian and, to be bluntly judgmental, sinful. And this is true irrespective of whether an individual who experiences a dysphoria deals with it in a way that we believe (or the Church teaches) does justice to our obligations to the truth about the human person and his or her identity. I have always praised and commended you for defending the humanity and dignity of all people--including those who self-identify as “sexual minorities,” including those who identify as transgender. But I hope that you will also, particularly in your one-on-one pastoral ministry and in your public commentary, found your work on the truths proclaimed by the Church about our embodied nature as male and female.

We would have compelling reasons to affirm these truths—and to join Pope Francis in rejecting gender ideologies that reject or compromise them—even if we were not Catholics. Sound philosophy is sound philosophy. But as Catholics we have additional reasons to attend to these truths and to join in their proclamation—even when bearing witness to them is difficult and risky, as it has become in our day when basic anthropological and moral truths proclaimed by the Church are unpopular among the powerful and influential. And if I may say so, these truths must be at the foundation of a priest’s or a deacon’s pastoral care of Catholics who experience, and so often struggle deeply with, gender dysphorias. It is critical for those providing pastoral care to speak truth—the whole truth—in love, even when truth, or aspects of the truth, are unwelcome and perhaps off-putting. To withhold the truth, even out of a sense of compassion, is not truly to love the person to whom one is ministering. The truth, we as Catholics believe, is liberating and life-giving, even when it is hard to hear and hard to live up to. The pastoral and the truthful are in the same “hylomorphic” unity as body and spirit. They are inseparable—and any attempt to separate them will, in the end, prove to be something far worse than a mere failure. And the highest price will be paid by those who most badly needed to hear the whole truth proclaimed. -- Yours faithfully, Robby

Freedom of Religious Institutions in Society

The Freedom of Religious Institutions in Society (FORIS) Project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world.

The first public event was held on May 29th in Washington, D.C.

You can watch the archived footage at this link: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society

Thursday, June 6, 2019

Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties

This Law & Liberty article by Michael Wagner is an interesting read about the increasing adversity that Christian healthcare providers face in Canada. 

Tuesday, June 4, 2019

Hittinger's essay on the Four Basic Principles of Catholic Social Doctrine

Rick and Kevin have both recently blogged about Russell Hittinger's essay, which you can read here: http://www.pass.va/content/dam/scienzesociali/pdf/acta14/acta14-hittinger.pdf

Hittinger invites us to think about the Four Principles by writing the following:

Why did the term ‘social’ come to the fore in Catholic teaching and thought? In order to answer this question, it is necessary to consider the four basic principles which orient the proceedings of this Academy: dignity of the person, solidarity, subsidiarity, and common good. Notice that, while all four principles presuppose the human person, the last three are specifically and irreducibly social. The dignity of the human person cannot be interpreted on the premise of methodological individualism – namely, that social unities and relations among members can be reduced to nonsocial properties of members or composites thereof. Indeed, whether there are real social entities instantiating real social relations amongst their members is the first and most abiding question.

Monday, June 3, 2019

The times in which we live

I've recently been re-reading parts of Martha Nussbaum's The Therapy of Desire: Theory and Practice in Hellenistic Ethics.  Its treatment of many of the topics and themes within the book's scope is outstanding, on a par with the quality I associate with her magisterial book, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy.  Turning the page in the former book yesterday, I was jolted when I reached footnote thirty-one on page 372, specifically this sentence: 

The substantial literature on the possible differences between Zeno and Chrysippus is summarized in Inwood (1985).  Substantial contributions are Pohlenz (1938, 1970), Voelke (1965), Rist (1969), Llloyd (1978). 

The jolt came from recalling that I had read the other day that Rist, John, favorably cited by Nussbaum (in that footnote and elsewhere), had recently been banned from entering pontifical universities worldwide. There, then, was John Rist, now the ecclesiastical "criminal," still lurking in Nussbaum's footnote as an example of first-rate, "substantial," contemporary work on Greek philosophy.   

According to Rist himself, as I proceeded to discover on the Internet, he went to fetch his car at the Augustinianum, across the street from the Bernini colonnade where he had been conducting research and supervising a graduate student, and was denied access.  Rist had received no advance notice, let alone a hearing.  As far as Rist and others have been able to make out, the offense for which he was banned was his being a signatory of the "Open Letter" accusing Pope Francis of the delict of heresy.  

I don't know Professor Rist personally, although years ago I had the pleasure of interacting with him at a couple of academic conferences, where he was much appreciated by everyone for his vast learning and generosity of mind.  Some years earlier, Rist had been teaching at the University of Toronto when I was a student there and in the Pontifical Institute of Mediaeval Studies, and I heard him lecture many times great erudition, insight, and care.  During the years I was in Toronto, in addition, Rist and I also attended the same parish served by the Toronto Oratory, where I saw him at prayer Sunday after Sunday.  Now Rist has been uncivilly banned from pontifical faculties.  Will Rist's status as "emeritus" at The Catholic University of America, where he taught after retiring from the University of Toronto, soon be removed?  

The Open Letter has many shortcomings, in my estimation, but the fact of Rist's having been banned from pontifical faculties, and without so much as notice or a hearing -- let alone something that would satisfy Mathews v. Eldridge! -- constitutes part of the puzzle of how things are going for some faithful Catholics in the Catholic Church today.   Perhaps the Open Letter was imprudent, perhaps it was even very imprudent, though I doubt that.  But what are the good and sufficient reasons, both of fact and of ecclesiastical law, that John Rist, a scholar of impeccable academic achievement and a faithful Catholic, is no longer permitted to go about his scholarly work the way he was until the week before last?  No reasons have been publicly adduced.  The Open Letter obviously struck a nerve somewhere, yet we can hope that the tolerance and desire for "encounter" promoted by the Holy Father will be extended to Professor Rist.

The process-less exclusion of Professor Rist from Catholic institutions of higher learning sadly provides arms to those who wish to find fault with the Church, something Professor Nussbaum herself has occasionally done.  Sadly, Rist's lawless exclusion finds some support in the remarkable ultramontanism, recently remarked upon by Philip Lawler, of Pope Francis's Veritatis Gaudium No. 26.2 (2018).  

Hittinger on "Reading the Tradition" the "Roman way"

Rick blogged last month about Russell Hittinger's essay, The Coherence of the Four Basic Principles of Catholic Social Doctrine: An Interpretation. In an introductory section "On Reading the Tradition," Hittinger distinguishes three contributing strands of theology, philosophy, and social science. He identifies the varying emphasis given to these different strands over time as a source of complexity. The whole concluding paragraph of this section is worth quoting in full:

Finally, the project is complex because all three factors – the theological, philosophical, and social scientific – are given different emphasis over the course of decades since 1878. The tradition is not only multi-disciplinary, but internally multi-faceted as one pope introduces new themes even while circling back upon the work of his predecessors. It is the Roman way to introduce new considerations while at the same time tightening their connection to the preceding tradition. Old things are made to look new, and new things look old. John Paul II referred to the scribe trained for the kingdom, who is compared to ‘a householder who brings out of his treasure what is new and what is old’ (Mt. 13:52). This is not mere pious sentimentality. The Pope meant it as a hermeneutical principle suitable for reading the tradition of social doctrine. Someone who reads the magisterial documents as bits of ‘news’ or as ad hoc pieces of Church policy on a particular social issues will understanding something, but not very much.