Issue link: https://www.epageflip.net/i/344045
WASHINGTON—Two5-4 decisions last week on the fi- nal decision day of the Su- preme Court's term dealt with issues that illustrate the legal consequences of political tac- tics by today's progressives. One case demonstrated how progressivism's achievement, the regulatory state, manufac- tures social strife, and can do so in ways politically useful to progressives. The other case arose from government coer- cion used to conscript unwill- ing citizens into funding the progressives' party. Under the 1993 Religious Freedom Restoration Act, any government action that sub- stantially burdens religious practices will be subject to strict judicial scrutiny to de- termine if it, rather than some less intrusive measure, is nec- essary to achieve a compel- ling government interest. The Affordable Care Act, as sup- plemented by regulations, re- quires for-profit employers to provide health care coverage that includes all 20 FDA-ap- proved birth-control methods. These include four that pre- vent a fertilized egg from be- ing implanted in the uterus. Some persons consider this tantamount to abortion and oppose these abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly in- compatible birth-control man- date? Congress didn't. In the ACA, Congress sim- ply required health plans to provide "preventive care" for women. An executive branch agency decided this meant the full menu of 20 technologies. So, during oral argument in March, Justice Anthony Ken- nedy asked: "What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemp- tion based on what the agency determined?" The answer is: The consti- tutional structure we have is the kind progressives prefer, wherein more and more deci- sions are made by unelected and unaccountable execu- tive branch "experts" exercis- ing vast discretion. In this in- stance, the experts were, to say no more, willing to provoke a predictable controversy that would be convenient for the Democratic Party's "war on women" trope. Today, this war consists of subsidizing only 16 of 20 birth-control methods. The court has held that some "closely held" businesses — of- ten family owned and adher- ing to religious practices — have a right under RFRA to wage this war. The court's other end-of- term case arose from over- reaching by government em- ployees unions and their Dem- ocratic allies. At issue were the First Amendment rights of people herded into unions af- ter being made into govern- ment employees by govern- ment's semantic fiat. In the 1950s, about 35 per- cent of the private-sector workforce was unionized; to- day just 6.7 percent is. The la- bor movement and the Demo- cratic Party's funding depend on government employees, 35.3 percent of whom are unionized. So, in Illinois, two Democratic governors manu- factured government employ- ees out of home health care workers, a growing cohort — and a tempting target for dues-hungry unions — in a na- tion with an aging population and many infirm elderly. In 2003, an executive or- der from Democratic Gov. Rod Blagojevich, of fragrant mem- ory, decreed that thousands of home health care workers are government employees, and resulted in the Service Em- ployees International Union being recognized as their rep- resentative. In 2009, an ex- ecutive order from the cur- rent Democratic governor, Pat Quinn, designated even more home care providers, who es- sentially are independent con- tractors, as government em- ployees. The tenuous theory was that they are govern- ment workers because their pay comes indirectly from gov- ernment — from the Medicaid funds received by the persons who hire them. Under a 1977 Supreme Court decision, which 26 states take advantage of, government em- ployees can be forced to pay certain fees to unions even if the employees do not wish to be in the union and dis- agree with its positions. In last week's case, the court carved out an exemption for people like the home care providers who are not "full-fledged" gov- ernment employees. This certainly seems sen- sible as applied to the lead plaintiff, a woman caring for her severely disabled son. Be- cause the court has now rec- ognized her First Amend- ment freedom of association — which includes the freedom not to associate — and free- dom from compelled speech, she no longer will be required to pay fees to a union she re- fuses to join. SEIU will have to look elsewhere for the ap- GeorgeWill The court's indispensable responsibility Cartoonist's take The California State Wa- ter Resources Control Board (SWRCB) adopted emergency regulations May 21 requiring the curtailment of water diver- sions on Antelope Creek in or- der to protect "naturally-pro- duced" spring run salmon and steelhead. The National Research Coun- cil warned in November of 1995 that by overwhelming natural fish, hatcheries erode the ge- netic variation that enable the fish to adapt. Emphasis on rais- ing salmon in hatcheries, once thought the key to their sur- vival, is pushing many natu- rally spawning salmon species to the brink of extinction in the Pacific Northwest, the National Research Council said. The report stated "Hatchery fish have at times exceeded the capacity of streams to support them and wild species." Records show that over the years large numbers of salmon, steelhead and trout have been planted in the upper reaches of Antelope Creek and no doubt competed with "natural spawners." California Department of Fish and Game Stocking Re- cords on Antelope Creek re- port that from 1938 to 1996, 576,715 catchable Rainbow, 75,000 Brown trout, 3482 Ea- gle Lake trout, 101.600 Steel- head trout, 202,460 Salmon fin- gerlings, 844,800 King Salmon, were planted in Antelope Creek. 1,804,057 total fish were planted between 1938 and 1996. From "Spring Run Life His- tory," biologists state: "Length of time to develop and hatch is primarily controled by wa- ter temperature. Salmon eggs hatch in 50 days when incu- bated at 50F, but require over 110 days at 40F and 300 days at 35F. Outside these ranges mor- tality begins to occur at tem- peratures above 58F and below 35F." Antelope Creek is a low eleva- tion, warm water creek unsuit- able for the viable propagation of Spring-run Chinook Salmon. In a letter dated Aug. 20, 2002, from California Department of Fish and Game, the recorded water temperature at the Facht Place was 78F on July 22, 2002. All salmon were holding in wa- ter temperatures exceeding 73F in this report. If the eggs need temperatures between 58F and 35F, the mortality rate in Ante- lope Creek must be quite high and definitely not a favorable habitat for spring-run chinook salmon. A 1996 Department of Fish and Game report list Antelope Creek Chinook Salmon popula- tion presence as "sporatic, not sustaining and the stock purity as questionable." From a letter dated Aug. 18, 1997: "The Department of Fish and Game has been conduct- ing spring-run salmon surveys in Antelope Creek since 1989. The past nine years of salmon counts suggests that Antelope Creek does not have a self-sus- taining population of spring- run chinook salmon." The July 1992, U. S. Depart- ment of Interior. Bureau of Land Management, "Proposed Redding Resource Management Plan and Final Environmen- tal Impact Statement," page A3 states: "Antelope Creek is not considered by fisheries experts to be an important spawning stream." The U.S. Forest Service "Wild and Scenic Rivers Eval- uation", page E-9, states: "The stream (Antelope Creek) gra- dient steepens above the Pon- derosa Way crossing, making the stream reaches above there probably unsuitable for anadro- mous fish." In addition to the steep gra- dient restricting access to the upper reaches of Antelope Creek, the stream fans out into several branches in the valley, reducing the flow to lower vol- umes and raising water temper- ature. It would be misguided to accept the premise that An- telope Creek plays a significant role in the life of Spring-run salmon. It is interesting to note that the often stated goal is to "re- store fish counts to historic lev- els" that existed when there were no fish ladders, no fish screens, more dams and more water diversions. Riparian and pre 1914 water rights are endangered by the Endangered Species Act. Water users are being asked to restore what was never there, and re- pair damage done elsewhere. —JimEdwards,RedBluff Guest view State water grab noted at Antelope Creek Another view By E.J. Dionne Jr. WASHINGTON Some elections are contests between voters who are happy and voters who are not. This fall's elections are of a different sort: Since almost all the voters are un- happy with politics, the battle will be over which party gets the blame for dysfunction, in- action and disillusionment. No one understands this better than Harry Reid. The Senate majority leader gets plenty frustrated when peo- ple claim that both parties are equally responsible for the mess in Congress. The ev- idence, he insists, is that the Republicans are gumming things up for their own politi- cal purposes. "It irritates me so much when people say, 'Why don't they just work together?'" Reid says. What this overlooks, he argues, is that "the Repub- licans made a decision ... to oppose everything Obama wants." It's in the GOP's inter- est to keep things from hap- pening because it plays into a simple narrative that Reid de- scribed this way: "Democrats control the Senate. We have a Democrat in the White House. Why can't you get things done?" The result: "They won't let us vote on things that the vast majority of the American peo- ple want a vote on." "It's so bad around here," Reid adds, "that they filibuster their own bills." A politician who is not given to seeking either attention or praise from the media, the Nevada Democrat invited a group of mostly liberal com- mentators to his Capitol office Wednesday to challenge what he sees as nostalgic reminis- cences about the Senate of old that ignore how much making the filibuster routine has made normal governing impossible. "Things are not the way they used to be around here," he says, "and I've been here for 32 years." There are numbers to back up Reid's complaint. The use of the filibuster has soared over less than a decade. The number of cloture votes per Congress (an imperfect but il- luminating measure of filibus- ter abuse) jumped into the tri- ple or high double digits since the Democrats took over the Senate in 2007, compared with the high teens or low 20s in the early 1980s, and the single digits before 1970. But there is also the po- litical factor: Democrats, in- cluding Reid, are under no il- lusions about how the public feels about Washington. What the Democrats may have go- ing for them relative to the Re- publicans, said a senior Demo- cratic Senate aide, is that vot- ers "hate them more than they hate us." This, the polls suggest, is true. A Quinnipiac poll re- leased earlier this month found that American voters disapprove of the job Republi- cans in Congress are doing by a 73 percent-18 percent mar- gin. They disapprove of the job Democrats are doing by 63 percent-29 percent. Among in- dependents, 74 percent disap- prove of the Republicans in Congress, while 69 percent disapprove of the Democrats. When it comes to opinion of the Republican Party overall, 52 percent of all voters have a negative view, 36 percent a positive view. For Democrats, it's 49 percent negative, 41 per- cent positive. Reid wants to reinforce these numbers (and maybe help bump the Democratic numbers up a bit) by making the battle over Senate dysfunc- tion something other than an insider's debate. The insider argument starts with the Dem- ocrats contending, as Reid did, that Republicans won't ever work with them. The Repub- licans immediately counter that Reid has made it difficult or impossible for the GOP to amend Democratic bills. Reid scoffed at the Repub- lican claim that he is "dictat- ing what's going on in the Sen- ate" and asserts that the real problem is that Republicans "can't agree among themselves on a list of amendments." The Republicans answer by say- ing, in effect: So what? If they can't get the amendments they want, they will keep insisting that they have no reason to co- operate with Democrats. The Democratic imperative is to break out of this dreary back-and-forth over process and focus on the substance of the bills being blocked. "We need to make the case that Congress would be helping the middle class if it weren't for Republican obstruction," the Senate Democratic aide said. Reid ticked off an agenda that includes a minimum wage in- crease, background checks for gun buyers, equal pay for women, and campaign finance reform. He also stressed that Congress should be passing a broad transportation bill rather than just another short- term extension of the Highway Trust Fund. Exposing the other side's sabotage is not the most in- spiring thing to do, but Reid figures that fighting back is better than giving in. At the least, the voters may hate you a little less. E.J. Dionne's email address is ejdionne@washpost.com. Twitter: @EJDionne. Where does the buck stop? GregStevens,Publisher Chip Thompson, Editor EDITORIAL BOARD How to have your say: Letters must be signed and provide the writer's home street address and home phone number. Anonymous letters, open letters to others, pen names and petition-style letters will not be allowed. Letters should be typed and no more than two double-spaced pages or 500words. 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