A16| Monday, December 7, 2020 THE WALL STREET JOURNAL.
First Cuomo, Now Newsom
T
he media are still preoccupied with Don-
ald Trump, but there is other news,
some of it even good. One example is the
Supreme Court’s new atten-
tion to violations of religious
rights in the pandemic.
Late last week the Court
vacated a ruling by a district
court that upheld California
Gov. Gavin Newsom’s sweep-
ing restrictions on religious gatherings. The
unsigned order remanded the case for recon-
sideration in light of the Supreme Court’s No-
vember ruling that enjoined similar restric-
tions in New York (Roman Catholic Diocese of
Brooklyn v. Cuomo).
Mr. Newsom banned indoor worship ser-
vices, small and large, for almost all Califor-
nians. But even as he strictly limited church at-
tendance, he let liquor stores and cardrooms
operate without capping the number of people
allowed. This disparate treatment is what the
Court scored in New York, and its intervention
in California shows its growing impatience with
limits on constitutional rights as the pandemic
continues.
A separate case out of Kentucky gives the
Court another chance to protect the free exer-
cise of religion. In an executive order last
month, Democratic Gov. Andy Beshear shut
down in-person instruction and private and
public K-12 schools. That included Danville
Christian Academy, which sued along with Ken-
tucky’s Republican Attorney General Daniel
Cameron.
Gov. Beshear says there’s no problem be-
cause schools are subject to the same shutdown
rules whether they are public or private, secular
or religious. The Sixth Circuit Court of Appeals
upheld his edicts on Nov. 29, citing the 1990
Employment Division v. Smith,when the Su-
preme Court held that a neutral and generally
applicable law can stand even if it incidentally
burdens religious practice.
Danville Christian Academy and Mr. Cam-
eron have asked the Supreme Court to inter-
vene, and Justice Brett Kavanaugh gave Mr.
Beshear until last Friday to re-
spond. The religious school
points to the Supreme Court’s
1993 ruling inChurch of the
Lukumi Babalu Aye v. Hialeah,
which held that even facially
neutral laws that burden reli-
gious exercise must serve a compelling govern-
ment interest and be narrowly tailored.
Mr. Cameron and Danville say Mr. Beshear
“has extended favorable treatment to a wide as-
sortment of secular gatherings without provid-
ing any explanation for why religious schools
do not also receive such favor.” The Governor
has allowed colleges, universities, preschools
and day care centers to meet in person. Gam-
bling parlors, bowling alleys, theaters and other
indoor facilities remain open, while thousands
of fans attend college basketball games.
Compare that to Danville Christian Academy,
which requires students and teachers to prac-
tice social distancing and have temperatures
taken, enforces mask-wearing, and has spent
$20,000 to $30,000 on plexiglass dividers, extra
cleaning and other Covid safety measures. Mr.
Beshear still shut religious schools.
If Mr. Beshear similarly limited all secular in-
stitutions, then theSmithprecedent might ap-
ply. Otherwise he must prove that his burden
on religious schools serves a compelling state
interest and is narrowly tailored. He will be
hard-pressed to do so. Covid research suggests
that young children are less likely to suffer se-
vere health consequences from the virus and
less likely to spread it to others.
Americans have put up with a lot this year
to limit the spread of Covid. But too often Gov-
ernors have imposed arbitrary restrictions
without respect for the Constitution or common
sense. The Supreme Court’s heightened scru-
tiny is welcome.The Supreme Court
extends its scrutiny
over pandemic orders.
Trial Lawyers vs. Arab-Israeli Peace
W
hen the White House announced in
October that Sudan planned to nor-
malize relations with Israel, it
showed that the peace move-
ment could extend beyond the
Persian Gulf. The northeast
African country is changing
for the better, but a pair of
self-interested Senators could
derail this progress.
Sudan had been a geopolitical nightmare for
most of dictator Omar al-Bashir’s 30 years in
power. He fell last year, and Abdalla Hamdok,
an economist and reformer, became Prime Min-
ister. A quarter-century after the country
hosted Osama bin Laden and al Qaeda, the tran-
sitional government is opening up civil society
and promising democratic elections in 2022.
Washington and Khartoum have negotiated
a broad deal to improve ties. On top of the
agreement with Jerusalem, Sudan has put $
million in an escrow account to pay victims of
al Qaeda’s 1998 U.S. embassy bombings. In ex-
change the U.S. would lift its state sponsor of
terrorism designation and restore Sudan’s sov-
ereign immunity. The deal would open the
country to foreign investment, which its shrink-
ing economy desperately needs. But Congress
needs to approve.
Mr. Hamdok leads a fragile government and
has survived an assassination attempt. Many Is-
lamists are unhappy with his turn to the West,
and some problematic officials from the Bashir
era remain influential. It could be tough for the
reformer to keep pushing change—or even re-
main in office—if the agreement falls through
and his legitimacy becomes questionable. Is-
raeli-Sudanese normalization would be off the
table, and Sudan’s currently poor ties with Iran
would likely warm up.
This seems like an easy U.S. call, and the deal
has overwhelming support on Capitol Hill. But
Senate Minority Leader Chuck Schumer and
Senator Bob Menendez (D.,
N.J.) blocked a bipartisan le-
gal-peace bill in September on
grounds that 9/11 victims
would no longer be able to
pursue claims against Sudan
as a state sponsor of terror-
ism. Yet the compromise bill would have let vic-
tims use the Justice Against Sponsors of Ter-
rorism Act (Jasta) to pursue Sudan alongside
Saudi Arabia. Some of the 9/11 victims’ lawyers
found this compromise acceptable.
Messrs. Schumer and Menendez have pro-
vided two counteroffers that amount to ransom
notes. Khartoum would outright reject the first
bill because it doesn’t provide immunity from
state-sponsor-of-terrorism claims. The second
includes several major amendments to Jasta—
providing more avenues of attack for trial law-
yers—that even went beyond the public de-
mands of some 9/11 victims’ lawyers. Other
unrelated demands would enrich attorneys
without making the world safer. The two Demo-
crats are willing to damage U.S. interests to
massage their lawyer donors.
The Senate plans to adjourn Dec. 18, and
there isn’t much time to pass legislation. Theo-
retically the next Congress can take up the is-
sue, as the payment in escrow won’t return to
Sudan until October. But there’s no guarantee
that the Sudanese government, under more
strain without a deal, would survive that long.
The Sudanese people want to move on from
the Bashir era, and they deserve help in making
a clean break. A failure to get the deal done
would be a tragedy for them—and for U.S. inter-
ests in an already tough neighborhood.Schumer and Menendez
block a deal to bring
Sudan closer to the West.
The Other Arizona Election Challenge
T
he outcome of the presidential race isn’t
the only election result being contested
in Arizona, and the other has even greater
consequences for the law. Last week two lawsuits
were filed against Proposition 208, the ballot ini-
tiative that imposes a new 3.5% tax surcharge to
raise an estimated $827 million for education. It
passed with 51.7% of the vote.
The suits are challenging whether Prop 208,
which passed as a statute, must conform to the
state constitution. One suit was filed by busi-
nesswoman Ann Siner and retired judge John
Buttrick, the other by the Goldwater Institute,
the influential Arizona think tank.
The suits claim that Prop 208 contradicts a
constitutional amendment that limits the amount
of revenue provided to school districts each year.
It also overrides another constitutional provision
requiring a two-thirds majority of the Legislature
to approve a tax increase.
The Legislative Council, a nonpartisan legisla-
tive office that reviews bills and ballot measures
for form and constitutionality, held that Prop
208’s language exempting the money it raises
from an existing cap on education spending “is
likely invalid” because it violates express consti-
tutional limits. Supporters went ahead anyway.
The state Supreme Court declined to rule on
claims that Prop 208 unconstitutionally curtails
the Legislature’s authority but said it couldn’t
consider the issue until it passed.
Prop 208 supporters say the people are sover-
eign and have spoken through the initiative. But
the suits argue that, though the people are sov-
ereign, they still have to obey their own laws and
constitution.
This is especially true, as in this case, when
the constitutional provisions being violated
were also passed by the people. Joining the
Goldwater Institute suit as plaintiffs are the
state Senate President, the Speaker of the House,
and the Chairs and Vice Chairs of the Appropria-
tions Committees in both chambers. The state’s
former solicitor general, Dominic Draye, is part
of the legal team arguing the case.
Ballot initiatives might be considered the
purest form of democracy because they allow
the people to speak directly. But Article XXII,
Section 14 of the Arizona constitution explicitly
states: “Any law which may not be enacted by
the Legislature under this Constitution shall not
be enacted by the people.”
The teachers unions that developed and pro-
moted Prop 208 could have avoided this problem
by opting to make the initiative a constitutional
amendment. But they chose to make it a law in-
stead, no doubt because it required fewer signa-
tures to qualify than a measure for a constitu-
tional amendment.
The serious question here is whether a state
constitution means anything in practice, or is
merely hortatory advice that interest groups can
ignore by putting an issue forward as a statutory
ballot initiative. If the Legislature is bound by
the state constitution, then a ballot law should
be too. The state Supreme Court has a profound
case to consider, with implications far beyond
a single tax increase.REVIEW & OUTLOOK
OPINION
The GOP Needs to Have a Health-Care Plan
Regarding your editorial “Can Re-
publicans Regroup on Health Care?”
(Nov. 30): That the party needs to
address its biggest policy vulnerabil-
ity correctly underscores the need
of a more competitive health-care
system but you miss the most im-
portant problem: Most health-care-
provider markets in the U.S. are
highly concentrated.
There is now overwhelming aca-
demic research that concludes the
rise in prices charged by hospitals
and doctors is due to reduced com-
petition and not increased volume
or quality. California data provide
an example. Between 2008 and 2018
the volume of hospital care pur-
chased by commercial insurers de-
clined by 15% while their payments
(and prices) to hospitals increased
by 283%. Much of this increase is
due to the growing power of large
systems. In many markets across
the U.S., insurance companies have
no choice but to contract with dom-
inant health systems—at above-mar-
ket rates—to offer health plans that
meet network adequacy require-
ments demanded by regulators and
employers.
We need limited but targeted reg-
ulations to restore competition to
provider markets if the GOP model
of limited government control can
work. Otherwise the public, which
doesn’t currently support a govern-
ment-run system, will see no other
option.
PROF.GLENNMELNICK
University of Southern California
Los AngelesThe GOP should forget about re-
forming ObamaCare and instead fo-
cus on policies designed to reduce
costs. If costs can be reduced, then
insurance will be more affordable
and ObamaCare subsidies, which bid
up the price of scarce supply, won’t
be as necessary. Instead, we should
increase the supply and push costs
down. Most European nations have
far more doctors per capita than the
U.S. does. If you have more doctors,
then you can staff more hospitals.
Greater competition among hospi-
tals would put downward pressure
on costs. Similarly, our experience
with the Covid-19 vaccine shows
that regulatory burdens are an im-
pediment to competition in the
pharmaceutical industry. When
those regulations are relaxed, new
medications come to market sooner
and at less cost. ObamaCare did
nothing to address high costs. The
GOP has an opportunity to correct
that error.
DAVIDPETERSON
Orlando, FlaA vision for health care should
begin with the end in mind: A
health-insurance industry that is as
competitive as auto insurance. If
anyone unhappy with his or her
health insurance could make a 15-
minute phone call, switch policies
and perhaps save 15%, many
health-insurance problems govern-
ment is trying to fix would fix
themselves. Yes, provisions would
need to allow people with pre-ex-
isting conditions to switch, ideally
with high risks covered by a sec-
ondary reinsurance market funded
with private capital, similar to
other types of insurance.
The accumulation of years of
well-intended laws and regulation
have had the consequence of pro-
tecting incumbent health-insurance
players. Americans are continually
awed at innovation throughout the
economy. If Congress would allow it,
perhaps the biggest brands in health
insurance five to 10 years from now
might be companies no one has
heard of yet.
JIMLEMUNYON
Oak Hill, Va.Republicans have a parallel to
health care that they fail to ex-
ploit—the 401(k). When Congress
established the 401(k) it was in-
tended as a supplement to com-
pany pension plans. Almost imme-
diately, companies began
converting their pension plans to
401(k)s which relieved them of li-
ability for fixed benefits and advi-
sory fees. The same will happen if
a “public option” is made avail-
able in health care. Companies
will phase out their private
health benefits with a small one-
time raise for employees and un-
load a major liability to the gov-
ernment.
WILLIAMJ.DOYLE
AtlantaIf the U.S. were able to create a
health-care system from scratch
there is no doubt that it would be a
vast improvement over the mish-
mash we have today. But a public
option, employer-sponsored insur-
ance and supplemental plans for
those who can afford more than ba-
sic coverage is where we are ulti-
mately going to end up. Republicans
will continue to be behind the eight
ball on this issue until they recog-
nize that everyone wants health
care, everyone needs health care
and only the government can make
this happen in a fair and equitable
way.
BOBKAGAN
Narberth, Pa.LETTERS TO THE EDITOR
“You get two weeks of vacation,
seven sick days and you can
play dead twice yearly.”THE WALL STREET JOURNALPepper ...
And Salt‘Urgent’ Stimulus Package Isn’t That Urgent
Regarding Alan Blinder’s “A
Speedy Recovery Depends on More
Aid. Will Trump Deliver?” (op-ed,
Nov. 27): Prof. Blinder chants the
left’s mantra that the economic re-
covery is in peril unless President
Trump and Senate Republicans can
work with House Democrats to pass
another stimulus package. It’s hard
to believe, however, that the econ-
omy could survive and thrive dur-
ing the state lockdowns preferred
by Democrats in the last eight
months, but it cannot scrape by for
eight weeks until Bidenomics ar-
rives and the spending floodgates
reopen.
If times are so tough in several
blue or purple states, why did Dem-
ocrats in the House reject the GOP
offer in October of a $1.8 trillion
stimulus package? The governments
that allegedly were in decent fiscal
health before the pandemic were, in
fact, living on the edge after de-
cades of imprudent underfunding of
pension and health benefits for gov-
ernment workers.
Some type of federal bailout of
beleaguered state and local govern-
ments surely is on the horizon. It is
a rare politician in either party who
doesn’t love bringing home the
pork, and the 2022 election cam-
paigning will unofficially kick off
shortly after Inauguration Day. Dem-
ocrats’ pleas for more money now
may reflect a desire to get a couple
more trillion dollars of pre-Biden
spending out of the way (and
blamed on president President
Trump), so that there is a clean
slate for a real spending surge when
Joe Biden is in the White House. As
it is, the national economy is
strong, holiday spending appears to
be robust, states that are strapped
can muddle through and Sen. Mitch
McConnell should live up to his rep-
utation and just say no.
MARKADAMS
AtlantaMr. Blinder states: “Remember, it
was Cares, plus a few other laws,plus rapid actions by the Fed, that
enabled the economy to make what
looks like a V-shaped recovery,” but
he cites no evidence to support this
conclusion. In fact, most of the
growth in the recovery came after
Cares money had run out and has
happened in the sectors of the
economy that were allowed to re-
open after being forced to shut
down (retail, restaurants, etc.).
Would that growth have happened
if those sectors had remained
closed? Will growth continue if the
government writes another round of
debt-fueled checks but those sectors
are forced to close again? The an-
swer to both questions is “no,”
which makes it obvious that more
reopening, not more government
debt, is the real answer for continu-
ing the recovery.
SHANEMILLER
Bentonville, Ark.Prof. Blinder faults Sen. Mitch
McConnell as “a roadblock to more
relief funds.” If Speaker Nancy
Pelosi would agree to get the very
people mentioned their relief,
dropping the bailout provisions for
mismanaged blue-state govern-
ments and their union pension
funds, agreement could be reached
in one day.
JULIANSPRATT
Melbourne, Fla.Letters intended for publication
should be emailed to [email protected].
Please include your city, state and
telephone number. All letters are sub-
ject to editing, and unpublished letters
cannot be acknowledged.