The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2020, the Supreme Court decided Little Sisters of the Poor v. United States. This case held that the ACA provided the Trump Administration with the authority to promulgate religious and moral exemptions from the contraception mandate.
The Cato Institute and the Jewish Coalition for Religious Liberty submitted an amicus brief that suggested a different way to resolve this case. We argued that the ACA did not delegate the authority to create the Obama Administration's initial "accommodation." Our brief was premised on the non-delegation doctrine, as well as the major question doctrine. Here is an excerpt from the introduction:
At base, the ACA did not delegate the authority to draw that arbitrary distinction and resolve this "major question." The fact that the rulemaking here was premised not on health, financial, or labor-related criteria, but on subjective determinations of which employees more closely adhere to their employers' religious views, "confirms that the authority claimed by" the agencies "is beyond [their] expertise and incongruous with the statutory purposes and design." Gonzales v. Oregon, 546 U.S. 243, 267 (2006). If "Congress wished to assign that question to an agency, it surely would have done so expressly." Id.
Had Congress intended to give the Departments discretion to decide which religious institutions should be subject to the mandate, it would have legislated to that effect. "It is especially unlikely that Congress would have delegated this decision to" the agencies, "which ha[ve] no expertise in crafting"religious accommodations "of this sort" without clear statutory guidance. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citing Gonzales, 546 U.S. at 266–67). In the light of the narrow "breadth of the authority" that Congress has given to the executive branch over this controversial issue of religious liberty, the Court is not "obliged to defer . . . to the agency's expansive construction of the statute." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).
Ultimately, the Supreme Court did not reach this issue. Justice Thomas's majority opinion observed that the question was waived:
No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States, 588 U. S. ___ (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions
This issue should be pressed in the upcoming OSHA mandate litigation. The Biden Administration will likely craft some type of religious exemption. Indeed, OSHA may mirror the regime established by the Obama Administration's contraception mandate. For example, the Department of Labor may completely exempt houses of worship with more than 100 employees. But religious orders will not be exempted. Instead, groups like the Little Sisters of the Poor will be accommodated. That is, employees will not be subject to the mandate if they satisfy some criteria established by the Department of Labor. For a preview, federal employees need to answer the following seven questions:
- Please describe the nature of your objection to the COVID-19 vaccination requirement.
- Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise? If so, please explain how.
- How long have you held the religious belief underlying your objection?
- Please describe whether, as an adult, you have received any vaccines against any other diseases(such as a flu vaccine or a tetanus vaccine) and, if so, what vaccine you most recently received and when, to the best of your recollection.
- If you do not have a religious objection to the use of all vaccines, please explain why your objection is limited to particular vaccines.
- If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them.
- Please provide any additional information that you think may be helpful in reviewing your request.
After people of faith fill out these forms, OSHA bureaucrats will have to assess whether an accommodation is warranted. And if the bureaucrat determines an accommodation is not warranted, employers will be subject to ruinous fines.
There is a problem with this approach. The Department of Labor has no expertise to decide which types of people of faith are exempted, and which types of people of faith are accommodated. On what basis can OSHA craft such an intricate framework based on difficult questions of faith? And they have no delegated authority to decide whether a person's beliefs warrant an accommodation. OSHA inspectors check workplaces for hazards, not beliefs. The Congress in 1970 that enacted OSHA said nothing at all about this matter. The Biden Administration is completely out of its league.
When the OSHA rule is finally issued, Plaintiffs should raise a "constitutional challenge to the breadth of the delegation."