Skip to main content

Analysis: The Law and Political Discourse

Many Americans manipulate the news to fit their preconceived beliefs (i.e., confirmation bias). This is not necessarily a societal ill, but the danger comes when events are misrepresented to others, allowing for the societal accumulation of imprecisions and mistruths.

This week's legal developments have provided fodder for misrepresentations. In this analysis, we will consider three: (1) the reversal of a requirement that health providers extend coverage to the transgendered, (2) the Supreme Court's 6-3 decision to bar employer discrimination based on sexual orientation, and (3) the Supreme Court's 5-4 decision to prevent President Donald Trump from cancelling Deferred Action for Childhood Arrivals (DACA).

First, the Department of Health and Human Services (HHS) revoked a regulation mandating that insurers and doctors provide medical care to transgender Americans. There is a technical predicate for this move: The Obama administration contorted the text of the Affordable Care Act (ACA), a.k.a. Obamacare, to create law in the name of administration.

The ACA banned discrimination on the basis of sex, meaning that an insurer cannot, say, preclude women from buying their plans because of maternal-care costs. The Obama-era HHS extended this mandate to protect the transgendered from discrimination without a commensurate change in the original ACA statute. As the Wall Street Journal reports, Obamacare does not "mention gender identity as a protected category in health care."

Most religious providers would embrace the opportunity to offer medical care or insurance to the transgendered. Providers are in the business of healthcare and, to boot, the religious see each and every person as equal under God. However, the Obama regulation led to objections to a specific set of procedures: gender-reassignment surgeries, hormone therapies, and hysterectomies, which run counter to the deeply-held beliefs of providers who see sex as an immutable endowment from the Creator.

In that sense, the Trump cancellation of the Obama mandate is a boon for Americans' constitutional rights. The Constitution notes that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and there is no addendum that reads, "This amendment does not apply to doctors and insurers."

The Constitution with a gavel

Most nettlesome are the proclamations that Trump is "stripping" the transgendered of medical care. HHS's move will have little effect beyond allowing a few religious providers to withdraw a few medical offerings (i.e., allowing individuals to make conscious choices about how they will act). There will be no widespread changes and nobody's medical care is at risk.

Second, with a 6-3 ruling in the case of Bostock v. Clayton County, the Supreme Court found that the 1964 Civil Rights Act precludes discrimination based on sexual orientation. To the chagrin of many on the right, Justice Neil Gorsuch (a Trump appointee) wrote the majority opinion.

Gorsuch's reasoning is as follows: The Civil Rights Act bans discrimination based on sex, and since someone fired for being gay would not have been fired if they were of the opposite sex, discrimination based on sexual orientation is actually sex discrimination. This rationale was previously rejected, as the Journal editorial board notes: "[A]ll 10 appellate courts that considered whether 'sex' covered gender identity and sexual orientation before 2017 held that it did not." However, Gorsuch's reasoning demonstrates his "textualist" approach to the law wherein the judiciary considers the exactitudes of the statutes under consideration -- as they are written.

The "originalist" model, alternatively, assesses laws based on the intent of those who created them. Whereas language changes over time and textualists' perceptions of statutes may be colored by their dynamic readings of static text, originalists view the legislators' intent as paramount. It is along these lines that the court's originalists (in this case, Clarence Thomas and Samuel Alito) dissented from the majority. They argued that the framers of the Civil Rights Act did not intend to prevent discrimination based on sexual orientation, and that proposals to that effect should be implemented legislatively.

Both textualism and originalism are conservative judicial approaches. Their proponents, Gorsuch included, see the judiciary as limited by the text or the intent of the laws under review, effectively prohibiting the excesses of judge-made law.

Third, the Supreme Court delivered a 5-4 ruling in the case of the Department of Homeland Security  v. the Regents of the University of California. This decision overturned Trump's cancellation of DACA, an Obama-administration initiative that protected from deportation people who were brought to the U.S. illegally by their parents. Trump revoked it while arguing that "creating or maintaining [the program] was beyond the legal power of any president," reports the New York Times.

Despite headlines proclaiming that DACA was "upheld," DHS v. Regents narrowly considered the minutiae of administrative law. It did not assess the legality of DACA, whose sister program (Deferred Action for Parents of Americans) was overturned by the Fifth Court of Appeals with the blessing of the Supreme Court. Instead, DHS v. Regents found that, in revoking DACA, the Trump administration did not follow the process laid out by the 1946 Administrative Procedure Act (APA).

The majority opinion notes, "The dispute before the Court is not whether [DHS] may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so." The decision adds that the administration did not "provide a reasoned explanation for its action," as mandated under the 1946 act, and that intra-administration debate was minimal.

One of the two dissents in the case -- which was penned by Justices Gorsuch, Thomas, and Alito -- argues that DACA itself was not compatible with regulatory procedure. Thus, the dissent argues, DACA can be overturned without paying mind to the APA. The justices curtly observe, "DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its rescission."


These three instances show the importance of linguistic clarity and good-faith argumentation. The Trump administration did not "revoke" the healthcare of the transgendered; HHS brought its regulatory policy into line with the text of the ACA and religious liberty. Gorsuch did not join the liberal wing of the court; he maintained his textualist judicial principles. And the Supreme Court did not "uphold" DACA; it ruled on a question of administrative law.

All Americans -- whether they have a microphone, a printing press, or a Facebook account -- should be careful about how they present legal developments. This is doubly true for more controversial matters. Amid incomplete information or understanding, declarative statements should be avoided. Any other approach leads to the disruption of political discourse.

All unsigned FDL Review content is the product of Declan M. Hurley.