an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How Congress Works (And the ObamaCare Subsidies Lawsuit)
It’s that crazy time of year when
time is short, but I cannot resist a couple of quick posts about the pending
Obamacare health exchange lawsuit, which should be decided within the next week
or so by a district court in Washington D.C.(Judge Paul Friedman), and followed
by several similar decisions in suits pending in Virginia, Oklahoma and Indiana.The case is incredibly important—if the
challengers win, consumers on more than half of the Obamacare health insurance
exchanges will receive no tax subsidies to help cover the cost of insurance, an
outcome that will devastate the operation of the Act. The case, in my view, is
also incredibly weak.And perhaps most
significantly for law professors, the case shows us just how much lawyers and
courts have to learn about the legislative process.This post will offer some “Congress 101,” and
explain how an understanding of the ACA’s legislative process should have put
this case to bed long ago. In my next
post on this subject, I will tackle some of the other issues in the case,
including some interesting Chevron
A quick summary of the case, for
those not up to speed: The health reform statute, the ACA, sets up new
insurance marketplaces (like Expedia for health insurance) and provides
generous subsidies to individuals and families with incomes up to 400% of the
federal poverty level to help them buy insurance in those marketplaces, which
are called insurance exchanges. The statute makes states the default operators
of those exchanges but if a state chooses not to operate one or fails to, the
federal government steps in.As most readers
know, more than half of the states have decided not to operate their own
exchanges, and so the federal government is doing so (how it’s doing in that
regard is another important story, but one not relevant here).
What is relevant here is
that the ACA is a very badly drafted statute.And it’s badly drafted for a simple reason that turns out to be important
to understanding how the pending litigation should be resolved:Because Senator Ted Kennedy died in the
middle of the legislative process and was replaced by Republican Scott Brown,
the statute never went through the usual legislative process, including the
usual legislative clean-up process. Instead, because the Democrats lost their
60th filibuster-preventing vote, the version that had passed the
Senate before Brown took office, which everyone initially had thought would be
a mere first salvo, had to effectively serve as the final version, unchangeable
by the House, because nothing else could get through the Senate.In the end, the statute was synthesized across
both chambers by an alternative process, called “reconciliation,” which allows
for only limited changes but avoids a filibuster under Congress’s rules.Keep this in mind and read on….
So, the statute is sloppy.It has three section 1563s, for example, as
Tim Jost has pointed out. The section at
issue in this case, the one introducing the tax subsidies, is another example
of the sloppiness.It states that the subsidies
shall be available to individuals enrolled in insurance “through an Exchange
established by the State under section 1311” of the Act (emphasis added). The challengers
argue that this text clearly excludes individuals enrolled through federally-operated
exchanges from receiving the subsidies.Section 1321 of the Act, however, further discusses the state exchanges
and sets forth the process
for the federal government to step in when the states fail to operate them. In
such case, the Act provides, HHS shall “establish and operate such
Exchange within the State” (emphasis added). The Government points to this and other
language to argue that when the federal government operates a state exchange it
stands in shoes of the state exchange and is “such an exchange” for purposes of
the Act. At a minimum , the Government argues, the statute is more than sufficiently
ambiguous to trigger agency deference.
There are other provisions that bear
on the issue, most importantly 26 U.S.C. 36B(f)(3), which requires the
exchanges to provide information about the tax subsidies for each consumer both
to the consumer and to the federal government.That section directs its reporting requirements to both “[e]ach Exchange … under section 1311(f)(3) [the state exchanges]
or 1321c [the federal exchanges].” In other words, 36B(f)(3)assumes that the
federal exchanges will also be reporting information about tax subsidies—a
requirement that is arguably nonsensical if consumers on federal exchanges are
not eligible for those subsidies.
My view is that whatever you
believe about the merits of these respective textual arguments, a basic
understanding of the ACA’s legislative process makes clear that Congress intended
for the subsidies to be available on the federal exchanges.I think the statute is sloppy, but I think
its meaning is plain—and not because I am relying on fuzzy notions of statutory
purpose. Rather, there are formalist, structural features of the legislative
process that make this case an easy one.(For more about the unforgivable
ignorance of lawyers and courts about how Congress works, see my two articles, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: I
65 Stan. L. Rev. 901,
and PartII, 66 Stan. L. Rev. (forthcoming 2014) (both with Lisa Bressman)).
Understanding the ACA’s Use of Reconciliation Should End This Litigation
Mostly absent from the briefing for
either side in the case is the fact that the section in the bill that most
clearly provides for both state and federal exchange subsidies—the information
reporting requirement in section 36B(f)(3), quoted above—was added during the Reconciliationprocess. The other sections in dispute were added in
the earlier, Ted Kennedy, Senate draft.In contrast, 36B(f)(3) came in months later. That
subsection makes clear the assumption that the subsidies would be available on
the federally-operated exchanges as well as on the state exchanges.Let me explain now why the fact that
36B(f)(3) came in through Reconciliation should be the ballgame.
As noted, the Reconciliation
process was the House-Senate bill-synthesizing process that was used in the ACA
instead of the usual Conference Committee process.Everyone who follows Congress knows that the
Conference stage is the most important
stage of the legislative process. Even the courts, which are generally ignorant
about the legislative process,acknowledge this fact about the importance of Conference.It’s the key stage for two reasons.First, it’s where the critical compromises
get worked out across the two chambers.And second, it is the last stage
of the process. In the case of the ACA, Reconciliation took the place of
Conference, and Reconciliation was particularly important because the two chambers
did not have their usual back and forth during the ordinary legislative process
(again, because everyone was stuck with Kennedy version of the Senate-passed
bill). Reconciliation was the only way, in the ACA story, that the two chambers
reached a final agreement.It was the
critical moment, and the provisions added then are where the courts should
focus their attention, and where any ambiguities should be resolved.
The counterargument, of course,
and one the challengers make, is that Congress could have done more to clarify
its intentions during that Reconciliation process.Sure, that would have done everyone a big
favor.But even assuming that the
special rules of Reconciliation (which only allow certain budget-related
changes) would have permitted such clarifying changes, that kind of negative
inference makes little real-world sense –not only because of the exceedingly messy context
of the ACA’s drafting but, more importantly, because there is zero evidence that anyone thought there was
anything to clarify. Because both chambers were certain that the subsidies
applied to the federal exchanges, there was no reason to focus the chambers’
final-stage political efforts on uncontroversial provisions.
And it is implausible that there
was any doubt on the part of House that the federal exchanges would receive the
subsidies.Recall that the House wanted all of the exchanges federally run and
only acceded to the Senate, state-led, default version because of the Ted
Kennedy situation. Given the House’s reluctance to make that compromise in the
first place, it is unthinkable that the House would have silently—without any
commentary in media, on the floor, or in proposed reconciliation amendments—accepted
a compromise that so greatly disadvantaged the federal exchanges that were its
priority all along.It is of no small
moment that the Reconciliation bill originated in the House, and is where the
House got to put its imprint on the legislation.The language about the federal and state
exchanges added as part of that bill cannot be read as anything other than as
confirming the common understanding that
the subsidies would be available on both types of exchanges.
2. The CBO Canon: Construe Statutory Ambiguities Consistent
with the Assumptions of the Budget Score
When these cases were first proposed
last year, I posted here on this blog an argument that Congress’s intent to give subsidies to the federal exchanges
was evident from the simple fact that the budgetary estimate for the ACA—which
was a central part of the legislative process—assumed that those subsidies would
be available.More generally, I proposed
a new “CBO Canon” of statutory interpretation: a default interpretive
presumption that ambiguous statutes should be construed consistent with the
assumptions underlying the Congressional Budget Office’s estimate of the financial
impact of the legislation. This proposed rule is especially relevant for statutes
like the ACA, for which the President set a budgetary goal and news outlets
repeatedly reported that the statute was tweaked over and over again to get the
numbers just right.
No Supreme Court case has ever
utilized the CBO score in this manner, but all of the Supreme Court’s statutory
cases claim to be about effectuating the legislative bargain. The challengers
in this case also have claimed that the purported omission of the subsidies for
the federal exchanges was intentional—that
is, they are not trying to take an advantage of something they claim to be a mere drafting
error.My recent empirical work with Lisa Bressman strongly
suggests that congressional drafters rely on the budget score enormously in
making their deals—indeed, much more so than they rely on the judicial rules of
statutory interpretation and often even more than they rely on close readings
of the statutory text itself. In other
words, if the idea really is to effectuate the congressional deal, as the
challengers claim, the courts should construe statutory ambiguities in a way
consistent with the assumptions made by CBO during the drafting process.
The government and amici have picked up the CBO argument in
this case, including providing a letter to Congress from CBO director Douglas
Elmendorf testifying to CBO’s initial and ongoing understanding that the subsidies
would not be for the state exchanges alone. Opponents have offered nothing as a
counterargument except for the fact that CBO’s initial calculation assumed, as
did most others policymakers, that most of the exchanges would be state
operated (because that is what the federalists now opposing the ACA wanted!).But that does not change the fact that
the CBO did not understand the subsidies to be only for the state exchanges. And we have more evidence that Congress, the
President, and the public all knew, followed and relied on the CBO estimate
throughout the ACA drafting process than we have that any of those players were
focused on the kind of hyper-technical textual arguments—made in the context of
a 2,000 word statute—on which the challengers hinge this case.
History is Irrelevant
The challengers also make a legislative-history
based argument that likewise falls by the wayside once one understands the
ACA’s legislative process.They cite a
stray remark by Senator Baucus in September 2009 explaining that the Finance Committee
had jurisdiction over the bill (in addition to the Health, Education, Labor and
Pensions Committee) because subsidies operate as tax credits.As an initial matter, the Baucus comment had
nothing to do with differentiating between the state and federal exchanges—it was
an explanation of why the Committee had jurisdiction over amendments relating
to health insurance coverage even as it would not have jurisdiction over
medical malpractice amendments. But even if it were relevant, it tells us
nothing about whether the subsidies might be offered on one, the other, or both.
(Read the transcript for yourself.) More
importantly, it is simply not true, as the challengers claim, that also
including subsidies for the federal exchanges would somehow have deprived the
Finance Committee of jurisdiction over the ACA. There is zero evidence for any
such argument in the record or in the rules of the Senate.
Of greater general importance, a stray
comment early in the drafting process of a statute with a legislative process
as unorthodox as the ACA’s has no place in the judicial decision-making
process.Our recent empirical work suggests
that congressional insiders would agree.Legislative history has an important place in the statute-making process
when the legislative history represents a consensus, is the product of
deliberation, and is tied to the text of the ultimate legislation.It has less relevance and is less reliable
when the statute goes through a process so unpredictable that even its sponsors
could not have charted its ultimate path.(The challengers out-of-context use of the Baucus comment is proof
positive of the risk of legislative-history cherry-picking in general, but is
all the more risky in messy statutes like this one.) And this same risk goes
for any other stray comment that either side might find.
There’s a lot
more that could be said about how little we understand the legislative process
and how important it is—both to this litigation and, more generally, to most legal
questions that we now face. Nor have I
attempted to comprehensively chronicle each of the challengers’ more minor
arguments in this kitchen-sink of a case, or to talk about how this case is yet
another illustration of the specially divisive politics of health reform.But I’ll leave it here for now, and return in
a future post with some thoughts about the Chevron
arguments, which are likely to be decisive.
Earlier this month,
the Supreme Court announced that it will consider two related cases involving
claims for religious exemptions to what has commonly (but inaccurately) been
called the “contraception mandate” under the Affordable Care Act—Sebelius
v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Corp. v. Sebelius.
The cases will be consolidated for oral argument, which the Court will almost
certainly hear between March 24 and April 2. The first briefs in the
cases will be filed on January 10. Amicus briefs on both sides are due
The cases raise a
host of potentially difficult and complicated questions. Eugene Volokh
has published a series of posts about many of those issues on the Volokh
Conspiracy; his introductory post is here.
I asked Eugene to consolidate them all in a published Word document for
readers’ convenience—and he did, in
53 single-spaced pages! In this case, length is a distinct
virtue: Eugene’s herculean effort is of enormous benefit to those wishing
to understand and follow the case; and he neatly separates out the various
topics so that the reader can easily pick and choose among them.
I agree with much,
but not all, of what Eugene writes; in the posts that follow I’ll focus on some
of the questions on which we disagree. But regardless of what one thinks
of the merits of many of these issues, Eugene’s magnum opus offers a very
useful and engaging exposition of the two cases and of many of the arguments we
can expect to see from the parties and their amici. In particular, Eugene’s
first three posts alone (1A through 1C) offer a very useful primer on the
statute at issue in these cases, the Religious Freedom Restoration Act
(RFRA)—which saves me a bunch of exposition here.
Meanwhile, here at
Balkinization, we’ve already published several important posts—this
one by Joey Fishkin, and a series of three posts on the Establishment
Clause questions raised in the case—here,
by Micah Schwartzman, Rich Schragger and Nelson Tebbe. These posts all
appropriately emphasize that although the parties in the two cases are
employers and the government, the legal questions depend crucially on how the
law affects a third set of actors who are not formally parties to the case—namely,
the millions of female employees of large, for-profit corporations.
In the series of
posts that I’ll be blogging in the coming days, I hope not to repeat much of
what Eugene and my fellow B’Zation bloggers have already written. I
thought it might be useful, however, to clarify some of the misconceptions and
confusions surrounding the cases and the laws governing them, and to probe a
bit further into some of the many complex questions they raise.
I begin, below the
fold, with a general framework for thinking about the cases—one that will
inform most of my posts to follow.
The death of Nelson Mandela raises the age-old question of whether individual leaders or impersonal forces drive history. Most of the time it's the latter, but there are exceptional circumstances where the man or woman plays a pivotal role. South Africa is one example. The relatively peaceful transition of power in 1994 was hardly inevitable, and Mandela's personal qualities made a huge difference.
With that in mind, I cannot help but reflect on how much was lost when Lincoln was assassinated at a crucial juncture of our history. Not only did America lose his exceptional skills and authority, but he was succeeded by a series of presidents who were not up to the task. Andrew Johnson is an obvious example, but lately I've come to think that Ulysses S. Grant was almost as bad. He had a chance to make Reconstruction work, but he squandered that opportunity through corruption and cluelessness. Ron Chernow, who was written fine biographies of Alexander Hamilton and George Washington, is now working on Grant. I wonder if he will be able to explain what went wrong. Posted
by Gerard N. Magliocca [link]
Monday, December 09, 2013
Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
We have been arguing (here, here, and here) that a religious exemption to the contraception mandate would raise serious concerns under the Establishment Clause. In our last post, we rejected the argument that employees are not burdened when the government creates an exemption from a government-provided benefit. Here, we want to consider a different objection, namely, that the Supreme Court has, in fact, allowed religious employers to impose substantial burdens on their employees. This objection rests, in turn, on a more general claim, which is that the Establishment Clause does not prohibit costs shifting when the government lifts burdens it has imposed on private religious actors.
A number of critics, including Eugene Volokh (here), have argued that the Establishment Clause prohibition on cost shifting does not apply in Hobby Lobby. To make this argument, they rely upon the Supreme Court’s decision in Corporation of Presiding Bishop v. Amos, which held that religious non-profit associations have a statutory right, pursuant to a religious exemption in Section 702 of Title VII, to discriminate on religious grounds against employees who do not share their religious affiliation, even when those employees are performing otherwise secular functions.
Some have misread Amos to stand for the proposition that the Establishment Clause does not limit cost shifting when the government lifts burdens that it has created, but only when it imposes legal obligations on third parties. We reject this view because it flatly contradicts the Supreme Court’s decision in Cutter v. Wilkinson, which relied upon Estate of Thornton v. Caldor to hold that the Establishment Clause requires courts to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” (We previously discussed Caldor here.)
A better interpretation of these cases is available – one that gives full meaning both to Amos and to the prohibition on cost shifting in Cutter and Caldor. In our view, Amos is about protecting the associational interests of churches and religiously-affiliated non-profits by allowing them to control their membership. But that protection does not extend to for-profit enterprises, which generally have weaker associational interests and which implicate greater concerns about equality of opportunity in the market. As we argue below, this interpretation is superior because it shows that the Supreme Court’s precedents concerning Establishment Clause limits on religious exemptions – Amos, Caldor, and Cutter –can be reconciled in a way that respects the different constitutional values expressed in them.
Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?
Nelson Tebbe, Richard Schragger, and Micah Schwartzman
Last week, we argued here
that a basic constitutional issue has been overlooked in the religious freedom
challenge to the contraception mandate. In brief, the missing argument is that
granting a statutory exemption to the mandate for religious employers would
violate the Establishment Clause by imposing a significant burden on the
employees who are the intended beneficiaries of the mandate. A longstanding
nonestablishment principle prohibits the government from lifting its burden on
the religious beliefs of one party when that would mean shifting the cost to
third parties who do not share those beliefs. Now that the Supreme Court has
agreed to hear Hobby Lobby and Conestoga Wood, it is imperative that
this constitutional issue be aired.
In this post, we want to address one objection to that
argument, namely that if religious employers are exempted from the mandate
their employees will suffer no burden at all. According to this objection,
employees have no right to health insurance that covers contraception in the
first place. Therefore, when religious employers are relieved of the obligation
to provide that coverage, employees suffer no burden whatsoever. They are
simply put in the same position they were in before Obamacare: without coverage
This objection presents a baseline question. If the normal
state of affairs is that no one has contraception coverage, then denying that
coverage imposes no burden (even if it is unfair). If, however, the baseline
for comparison is a world in which everyone can legitimately expect affordable
health insurance that includes contraception, then removing that coverage
imposes a burden. Which is correct?
A story in today's New York Times, about a new wave of legal challenges to the Affordable Care Act, includes the following description of a remarkably principled individual:
One plaintiff in the District of Columbia case, David Klemencic, the
sole owner of a carpet and flooring store in the town of Ellenboro,
W.Va., was also a plaintiff in the constitutional challenge to the
individual mandate. In an interview, Mr. Klemencic, who does not have
any employees, said he had deep, philosophical objections to any effort
by the government to require him to purchase insurance, and would refuse
to accept a subsidy even if eligible.
“I go to the doctor now, I go to the dentist now, I take my checkbook
and I pay for it,” he said. “If I’m forced into some sort of program
where it’s subsidized by the government, I won’t go see a doctor.”
About ten years ago, the satirical newspaper The Onion ran the following fictitious story:
Libertarian Reluctantly Calls Fire Department
WY—After attempting to contain a living-room blaze started by a
cigarette, card-carrying Libertarian Trent Jacobs reluctantly called the
Cheyenne Fire Department Monday. "Although the community would do
better to rely on an efficient, free-market fire-fighting service, the
fact is that expensive, unnecessary public fire departments do exist,"
Jacobs said. "Also, my house was burning down." Jacobs did not offer to
pay firefighters for their service.
Here, reality has outpaced fantasy. Presumably, if Klemencic's house catches fire, he will resist any effort by the fire department to trespass on his property.
I'll note (since nobody else yet has) that our own Sandy Levinson is profiled in an article by Jeffrey Toobin in this week's New Yorker. Unfortunately, the article is behind a paywall. Posted
by Gerard N. Magliocca [link]
Sunday, December 01, 2013
More n pardons
Today's NYTimes has a number of responses to my Monday letter on presidential pardons (itself reprinted), as well as my final thoughts. I continue to find it significant that no one, whether those writing letters to the Times or Balkinization discussants, has actually defended Obama's (or Bush's) hesitation to exercise the constitutionally-granted pardon power. Jeffrey Crouch, who has written an interesting book on the pardon power, has a letter repeating his concerns about abuses of that power, including, especially, George H.W. Bush's "last Christmas in Washington" pardons of a number of people who were being investigated for their role in "Iran gate" and their potential ability to implicate Bush himself. He also pardoned Elliot Abrams, who had lied to Congress; that pardon presumably helped rehabilitate Mr. Abrams and make possible his service in the administration of George W. Bush. I conclude my "on-line" response--the print version had to be edited for reasons of space--with the following:
Finally, Professors Crouch and Ruckman set out the conflicting arguments about the use of the presidential pardon power. All such powers are subject to misuse.
The question is whether we fear “sins of commission” like the Marc Rich
pardon more than the “sins of omission” of presidential heartlessness.
UPDATE: The Washington Post has a strong editorial criticizing the President for his stinginess in granting pardons (or commutations). He is, indeed, the stingiest president in modern history. (He has, however, pardoned ten turkeys during his five years in office.) Interestingly enough, one of the Post's polls based on the obviously unscientific responses of their online readers indicates that 53% "oppose" the proposition that the President should issue more pardons and only 47% "support" it. I realize that those who write letters to the NYTimes or respond to Balkinization posts are no more scientific a sample, but this heartless majority nonetheless surprises me unless it is based on the premise that Obama should do nothing at all, period. Posted
by Sandy Levinson [link]
Saturday, November 30, 2013
The perverse incentives of "divided government"
My latest on-line column for Al-Jazeera elaborates my argument that "opposition" parties have no incentive to collaborate with presidents on "signature" legislation for the simple reason that almost invariably it is the president (or his/her party) that will benefit if the legislation is in fact popular. Thus I regard as absolutely fatuous the argument of Fouad Ajami in the Wall Street Journal (hyperlinked in the column) that the reason the Affordable Care Act is defective (which it certainly is) is because of Obama's refusal to "compromise" with Democrats. The fact is there is no evidence at all that a single Republican was genuinely willing to work in good faith with the Administration. Those who hinted at doing so, such as Sen. Grassley, were apparently told in no uncertain terms that their future as Republican leaders depended on getting with the McConnell program of bitter-end resistance..
Has this always been the case? Arguably not, since David Mayhew and others have argued that much legislation was passed in the past during episodes of divided government. I think there are problems with Mayhew's argument, principally involving how one evaluates the merits of such legislation (as against the kind of legislation that would have passed had the president's party been in control), but even if one accepts his argument, I think one can argue that things have changed in just the last decade or so (though I think that a seminal moment was Bill Kristol's memo in 1993 to Republicans telling them that whatever else they did, they had to make sure that Bill Clinton was denied the passage of any medical care legislation).
Micah Schwartzman, Richard Schragger, and Nelson Tebbe began an important conversation with their post on this blog about the contraceptive mandate and the Establishment Clause. It’s important in part because it brings into the picture the people who are the key to understanding the constitutional stakes in Hobby Lobby and Conestoga Wood Specialties: the employees.
These cases are triangle-shaped. Government, employers, and employees each have an important relationship with each of the other two. Because of the design of the Affordable Care Act, all of these relationships are implicated in the litigation over the contraceptive mandate and religious exceptions to it. However, only two corners of the triangle are parties to the litigation: the employers and the government. Employees are not represented. This makes it easy to overlook much of the real action. I look forward very much to the rest of Micah, Rich & Nelson’s series.
My aim in this blog post is to make a pretty simple point. Here it is: As large employers in a post-ACA world, Hobby Lobby and Conestoga Wood Specialties are acting partly on behalf of the federal government, with subsidies from the federal government (as well as extensive regulation), when they offer health insurance to their employees. Large private employers have been enlisted, by law, as one part of an overall federal project of health insurance provision. Their role is essential. Hobby Lobby is the exclusive instrument through which the federal government provides the benefits of the ACA—federally subsidized, affordable insurance—to a set of individuals entitled to the benefits of the ACA (the company’s employees). That is the key background fact against which one must measure the First Amendment implications—on both the Establishment side and the Free Exercise side—of the special exceptions being sought by large private, for-profit employers with religious owners.
On the face of it, it may seem odd to suggest that a private employer, going about its own business, offering a health plan to its own employees, could at the same time be acting partly on behalf of the federal government or as an instrument of the federal government. Yet that is exactly what is going on, post-ACA. To understand why, we need to understand how the ACA works and how it alters the basic setup of the American social welfare state.
The Establishment Clause and the Contraception Mandate
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
Yesterday the Supreme Court granted certiorari in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which ask whether large, for-profit corporations and their religious owners can assert rights of religious free exercise under the Religious Freedom Restoration Act (RFRA), and, if so, whether their rights are violated by the government’s requirement that they pay for health insurance that includes coverage for various forms of contraception.
So far, the five circuit courts that have decided these questions – including the lower courts in Hobby Lobby and Conestoga Wood – have focused exclusively on two main issues: (1) who can assert claims for religious exemptions under RFRA, and (2) whether those claims are likely to be meritorious given RFRA’s requirement that courts apply strict scrutiny to laws that substantially burden religious exercise.
But as we argued yesterday in Slate, the contraception mandate litigation, and the media coverage of it, is not presenting the full range of arguments. The courts and the litigants have failed to consider a serious Establishment Clause challenge to exempting large, profit employers from the contraception mandate.
I have a letter in today's NYTimes that is part of their "invitation to a dialogue" series. I will reply in the Sunday Times to letter received today and tomorrow. Understandably, the Times shortened my original submission, so it is perhaps worth pondering the following paragraph that did not make the final version:
of omission, by failing to exercise mercy when it is called for, are
just as serious as what might be thought to be President Clinton’s sin
in pardoning Marc Rich (or Ford’s pardon of Nixon). The
difference, of course, is that the latter was greeted by widespread
public criticism and hostile editorials, as was the case when former
Mississippi Governor Haley Barbour pardoned
215 convicted felons, including several murderers, as he left the
“Christianity teaches us forgiveness and second chances.” Barbour explained.
One doesn’t have to be Christian to see merit in Barbour’s argument.
No doubt President Obama is far more likely to pardon the Thanksgiving turkey than to take seriously his constitutional right/duty to monitor the basic fairness of the federal criminal justice system. One of the things that is noteworthy is that a number of conservative federal judges have been as vociferous in their dismay over the mindless mandatory minimums imposed by a fearful and callous Congress as have more liberal judges. This is no longer, assuming it ever was, a partisan political issue. (One of the most objectionable aspects of Mitt Romney, incidentally, is that he took pride that he had never exercised his gubernatorial power to pardon while governor of Massachusetts. This is, I think, a dispositive argument about his genuine character.)
One other point: I am uncertain whether Ford's pardoning of Nixon is really condemnable. It may well have served the interests of the country.
UPDATE: Tomorrow is slated to be the day on which President Obama will "pardon" at least one Thanksgiving turkey. In the best of times, presidents should stop engaging in such a stupid rite. But Obama himself should be absolutely ashamed--indeed, mortified--at participating in this ritual given his remarkable degree of heartlessness toward thousands of people serving unjustifiably long terms in federal prisons. A fine piece in this afternoon's Washington Post includes facts and figures demonstrating how Obama has used his pardon power less than any other president in recent American history. Many people are in prison serving excessive mandatory minimum sentences under a statute declared unconstitutional by the Supreme Court but, in its infinite wisdom, made non-retroactive. They are truly victims of being in the wrong place at the wrong time.
I think it is interesting that no one who wrote into the Times as art of the "invitation to a dialogue"--the letters and my response will be in the forthcoming Sunday Times--took genuine issue with me. Nor, for that matter, has anyone in the "comments" below, which have morphed into a discussion of the Nixon pardon. Whatever may be said about that pardon--or Marc Rich's or Scooter Libbey's commutation--is really quite irrelevant with regard to the less famous and well-connected wretches languishing in federal prison. (Obviously, there are even more in state prisons, but Obama can do nothing for them, unlike federal prisoners.) Wouldn't it be wonderful if 100,000 Americans--the new minimum, I think, under the White House policy of accepting petitions from the general public--sent in a petition demanding that he exercise his constitutional prerogative--indeed, duty--to temper legalistic justice with mercy?
FURTHER UPDATE: Alas, Obama did indeed participate in the idiotic ritual. It will be interesting to see if he displays any genuine mercy as we move toward what had been the traditional "pardoning season."
Most contemporary liberal political philosophers in this country are kindly
disposed toward the idea of religious liberty. But ever since the Reagan era
they have been anxious about the rise of the Religious Right, and
correspondingly eager to contain the influence of religion over politics. Drawn
to the notion that the state ought to be neutral with respect to any
controversial conception of what constitutes a good life, they have spawned a
number of theories that aim to recast what is politically salient about
religion in neutral, nonreligious terms, such as “conscience” or “individual
autonomy.” Unhappily, this move toward abstraction discards
everything that is specifically valuable about religion, even as it threatens
to deprive us of the legal and political tools we need to deal with the
problems that religious diversity generates.
For many years, the Canadian philosopher Charles Taylor has been a leading
voice for a more historically and ethically grounded approach to the
complexities of religious practice in secular society. In his most recent
writings, however, Taylor has started to sound a lot like the advocates of
neutrality. In an essay titled “Why We Need a Radical Redefinition of
Secularism,” he argues that “all spiritual families must be heard” in the
process of social self-determination. And in Secularism
and Freedom of Conscience, a 2011 book co-authored with Jocelyn
Maclure, he writes that the democratic state must “be neutral in relation to
the different worldviews and conceptions of the good—secular, spiritual, and
religious—with which citizens identify.” Anything else, he insists, would make
some into “second-class citizens.”
These claims can be read two ways. One of these takes them
as a call for a negotiated common ground, working from whatever commitments
citizens happen to have—religious or otherwise—toward an outcome that will
honor all those diverse commitments while adjudicating the inevitable conflicts
among them. In present U.S. law, for instance, accommodation is given to ritual
peyote use in Native American religious ceremonies but not to recreational use
of hallucinogens, and nobody gets permission to use heroin. The other view is
that Taylor has joinedcause with
those theorists who claim that the state ought to be neutral with respect to
any conception of the good. Which view of Taylor’s thinking is more accurate?
originally designed, the Affordable Care Act expanded Medicaid to cover
childless adults up to 138% of the federal poverty level – with the federal
government picking up every penny for the first couple of years and at least 90%
thereafter.Those who got health
insurance through exchanges would get a subsidy if they earned between 100% and
400% of the FPL. But the Supreme Court unexpectedly declared that the
states could reject the expansion – and where Republicans are in charge, many have.The old Medicaid, which continues to operate,
can be remarkably stingy. In
Alabama in 2009, it covered adults with children who have incomes below 11.5%
of the federal poverty line, which was $2,425.50 a year for a family of four.So the refusal to expand Medicaid is a pretty
severe way to score political points against Obama.
Important new research by Kentucky Law Prof.
Nicole Huberfeld shows
that this story has been misreported.Many of the states that have been counted as refusing the Medicaid money
are in fact moving toward accepting it.There are a few stubborn holdouts, including Texas, which has a huge
uninsured population.But the overall
pattern is different from what you’re likely to read in the newspapers.