Barack Obama said goodbye to the White House two years ago -- but thanks to an army of activist judges, he never really left. In windowless courtrooms across America, Obama's policies live on, despite the fact that so many of them were unconstitutional to begin with! Meet the judicial #Resistance -- a bigger threat to Donald Trump's presidency, David French fears, than Democrats themselves.
Over the last couple of days, a pair of federal judges decided to prove French's point, ruling -- separately -- that a policy created by the executive branch suddenly can't be changed by the executive branch. (At least, not when that executive branch is headed by Donald Trump.) That's especially shocking when it comes to Obama's contraception mandate, a policy that's already lost 90 percent of its cases in court. By and large, everyone but a handful of militant pro-abortion groups agrees: no American should be forced to pay for someone else's birth control --or face thousands of dollars in fines.
Last year, President Trump tried to close the chapter on one of Obama's worst assaults on religious liberty. Under a new rule, which was supposed to take effect yesterday, the conscience exemptions for the HHS mandate wouldn't just apply to faith-based groups, but to any employer with a moral or religious objection to drugs like Plan B. Nothing about that should be controversial. Unlike Obama's mandate, it's in line with the Religious Freedom Restoration Act -- and, more importantly, the First Amendment of the U.S. Constitution. As most Americans have acknowledged for years, there are plenty of options for free birth control that don't involve bankrupting nuns, religious schools, charities, or businesses who don't march to the beat of the Left's radical drum.
Unfortunately, two judges in California and Pennsylvania don't see it that way. After a rare Sunday ruling that blocked Trump's exemptions from taking effect in 13 states, U.S. District Judge Wendy Beetlestone took things a step further on Monday -- blocking HHS's new rule nationwide. According to Judge Haywood Gilliam, fining a group $100 per person, per day wasn't what he considered a substantial burden on their faith. Tell that to the Catholic Benefits Association (CBA), who racked up $6.9 billion worth of penalties for exercising the freedom that brought our founders to this country.
"No American should be forced to violate his or her own conscience in order to abide by the laws and regulations governing our health care system," an HHS spokeswoman said in a statement Sunday night. "The final rules affirm the Trump administration's commitment to upholding the freedoms afforded all Americans under our Constitution." What's more, David French argues, the number of people affected by the change are less than one percent of the female workforce! "And, keep in mind, each one of the affected women has voluntarily chosen to work for her employer. There are ample alternative choices if these women choose to prioritize contraception access in their employment decision. But no. Even that tiny concession to religious liberty was too much for [these judges]."
The HHS mandate wasn't an act of Congress. It wasn't even, French points out, a regulation. "But what one administration creates by memo another administration can revoke by memo -- correct? Well, not if you're a federal judge who believes he's resisting bad policy. Then you elevate the Obama-administration action to (at the very least) the level of a regulation, and you require the incoming administration to apply statutory procedures that the outgoing administration actively and intentionally scorned." President Trump is a fighter. And considering the legal battle he has on his hands at every turn, that's a good thing.
If there is any consolation about the non-stop obstruction at the courts, it's that this administration has spent the better part of two years trying to correct it. Together with the Republican Senate, the White House is slowly bringing the bench back in line with an influx of strict constructionists who look to the constitution and the law -- not their own political prejudices -- to rule. Future conservatives may have Trump to thank for a judicial system that finally understands its limits. Whether or not it will be in time for this president to shake free from the courts' #Resistance, no one knows.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.
