The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For nearly a decade, the courts have been hearing challenges to the Affordable Care Act's contraceptive mandate. But, if you read the bill, there is no actual "contraceptive mandate." (Nor is there any provision called the "individual mandate.") Rather, the bill requires insurers to provide "preventive care." The ACA did not actually define what "prevent care" consists of. Rather, that decision was delegated to an agency.
I have long argued that this delegation is suspect. In 2020, I advanced a related position before the Supreme Court in Little Sisters of The Poor v. United States. 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).
I discussed the legislative history of the contraceptive mandate and exemptions in pages 29-66 of Unraveled. In particular on page 43-49, I discuss the legislative debates underlying the "preventive care" mandate. Here is a snippet:
Had there been any discussion that this provision would be used to force employers, including religious nonprofits, to cover contraceptives that can prevent the implantation of a fertilized egg, there would have been an uproar. Such a bill was unlikely to have secured the vote of Senator Nelson and others in the fragile sixty-member caucus. It is not clear that anyone in the House understood the Amendment would operate in this broad fashion. Representative Stupak explained that the "[t]he principal tenet of [his the pro-life] Caucus members is their belief that the fertilized embryo is a human life and that any man-made disturbance of the embryo is a form of abortion." 126 FDA-approved contraceptives may have the effect of "preventing the implantation of a fertilized egg." 127 Under no circumstance could the pro-life caucus have supported a mandate that was contrary to their mission statement – even with the president's executive order, which would have no impact on the mandate. I could not locate a single contemporaneous statements from Stupak or anyone else in the House suggesting that they realized the "preventive care" mandate could be used to force religious employers to cover such contraceptive methods that his caucus opposed.
And here, I alluded to what we now call the Major Questions Doctrine.
This is the proverbial dog that didn't bark , a legal principle derived from Sir Arthur Conan Doyle's classic story "Silver Blaze." 129 In the story, an officer from Scotland Yard is investigating a night-time robbery of a racehorse. He asks Detective Sherlock Holmes, "Is there any other point to which you would wish to draw my attention?" Holmes replies, "To the curious incident of the dog in the night-time." The officer is confused. "The dog did nothing in the night-time." Holmes deduces, "That was the curious incident … Obviously the midnight visitor was someone whom the dog knew well." The dog that did not bark was the clue. That no one objected to a mandate requiring all employers – with no exceptions for any religious groups – to provide contraceptives was itself the "curious incident." This issue is even more extreme than the Hyde Amendment debate, as the issue was not about federal funding for abortions, but forcing religious organizations to pay directly for these contraceptives. Amid the debates over the individual mandate, funding for abortion, and the issue of state-run exchanges, this pivotal detail went entirely unnoticed.
Ultimately, the Supreme Court did not reach the delegation issue in Little Sisters of the Poor. 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.
Now, in the wake of West Virginia v. EPA, this issue of delegation has been re-invigorated.
Yesterday, oral arguments were held in the Northern District of Texas in Kelley v. Becerra. The case is very complex, but squarely presents the delegation issue. And the Plaintiffs are represented by Jonathan Mitchell, the genius.