At the Bill of Health blog, my buddy Greg Lipper has a detailed rejoinder to the amicus brief I filed along with Ilya Shapiro on behalf of the Cato Institute in support of the Little Sisters of the Poor’s cert petition. (I recently became a Cato Adjunct Scholar–this is an unpaid position). Greg and I had an extended twitter debate about this a few weeks ago, so I figured something more formal would follow. Greg did not disappoint–please take a moment and read the post, and then come back. Back already? Ok, let’s start.

Here is how Greg characterizes our argument:

Instead, Cato makes the following argument: (1) in light of King v. Burwell’s statements about agency deference, HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act, and (2) without a religious accommodation, the contraceptive coverage requirement is unenforceable against nonprofit organizations with religious objections.

This is very, very close, but not exactly right–and the subtle difference makes a huge impact on our argument. We don’t argue that “HHS had no authority to offer religious accommodations.” Our position is more elementary, and it focuses on how HHS has exempted some religious organizations, and accommodated others. Allow me to walk you through it.

First, it is important to distinguish the exemption from the accommodation (most people, myself included, had no idea what the difference was when I started working on this case):

In response, the Departments took two decisions to balance religious liberty with their delegated authority to mandate coverage of “preventive care.” First, they automatically exempted certain “religious employer[s]”—limited to houses of worship and their auxiliaries—from the mandate; their employees would not receive contraception coverage. 76 Fed.Reg. 46623. Second—and at issue in this petition—they created an “accommodation” to the mandate for other religious employers. By objecting to the mandate, and providing information about their insurers, the organizations are not required to pay the cost of the objected-to contraceptives, but their employees still receive coverage. The Departments do not claim that either the exemption or the accommodation was compelled by RFRA or the First Amendment. Instead, they claim that 42 U.S.C. § 300gg-13(a)(4), among other related provisions, provides the statutory authority to decide which religious organizations should be exempted, and which should be burdened by the accommodation.

Second, our argument centers around the fact that HHS decided which religious organizations were worthy of the exemption, and which would be burdened by the accommodation (the government concedes that the accommodation does burden, however slightly). This is not the equal protection argument advanced by Judge Leon in the March for Life case, but it is in the same ballpark.

When Congress is silent on how religion should be accommodated, executive-branch agencies do not get carte blanche to pick among religious groups that should be exempted from a mandate that imposes a substantial burden on free exercise, nor can they fashion ad hoc accommodations. Congress could certainly legislate an accommodation in this area, but this same action becomes ultra vires if taken by an agency lacking interpretive authority to make such profound decisions. “It is especially unlikely that Congress would have delegated this decision to” the Departments, “which ha[ve] no expertise in crafting” religious accommodations “of this sort” without clear statutory guidance. King, 135 S.Ct. at 2489 (citing Gonzales v. Oregon, 546 U.S. 243, 266–267 (2006)).

Third, HHS’s offered the exemption to houses of worship, but not to religious organizations like the Little Sisters because their employees are “less likely” than the former “to share their employer’s . . .  faith.” This is an argle-bargle-jiggery-pokery-apple-sauce cocktail.

Further, the Departments’ justifications for their accommodation strategy reflects their blinkered approach to protecting religious free exercise. The Departments offered the exemption to houses of worship but not associated organizations based solely on the conclusory assertion that employees of the latter are “less likely” than the former “to share their employer’s . . .  faith.” 78 Fed.Reg. 39887. That HHS refused to exempt people who work for the Little Sisters of the Poor—a group of nuns who vow obedience to the Pope!—is a testament to how out-of-their-league the Departments were in evaluating and responding to burdens on religion. The fact that the rulemaking is premised not on health, labor, or financial criteria, but on the Departments’ own subjective determination of which employees more closely adhere to the religious views of their employers, “confirms that the authority claimed by” the Departments “is beyond [their] expertise and [is] incongruous with the [ACA’s] statutory purposes and design.” Gonzales, 546 U.S. at 267.

Based on Gonzales v. Oregon, and more recently King v. Burwell, such a decision is frankly not within the “expertise” of the agencies. It is not a permissible construction of the statute.

So let’s go back to Greg’s initial claim: “HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act.” He adds, “Cato seeks—in the name of religious liberty!—to prevent regulatory agencies from granting accommodations to entities with religious objections to regulations.”

Not at all. HHS can, and should offer accommodations where its actions would violate RFRA. Indeed, they are required to under RFRA. However, agencies cannot take any actions they deem expedient in order to comply with RFRA. Rather, like all administrative action, it must be performed within the agency’s “expertise” and “interpretive authority” delegated by Congress. This was the lesson of King v. Burwell–recall the Court rejected claims that Treasury had authority to interpret a statute about tax credits. As we frame it in the brief:

The Departments’ decision regarding whether and how to offer a religious accommodation is the quintessential “major question” of profound social, “economic and political significance.” Brown & Williamson, 529 U.S. at 1315. Even if the “preventive care” mandate is ambiguous in this regard, the accommodation cannot possibly be a “permissible construction of the statute.” Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). “The idea that Congress gave the [Departments] such broad and unusual authority through an implicit delegation in the” broad purposes of the ACA “is not sustainable.” Gonzales, 546 U.S. at 266-67. The accommodation “exceeds the bounds of the permissible.” Barnhart v. Walton, 535 U.S. 212, 218 (2002).

In light of the narrow “breadth of the authority” that Congress has afforded to the Departments over this controversial issue, the Court is not “obliged to defer . . . to the agency’s expansive construction of the statute.” Brown & Williamson, 529 U.S. at 160. Indeed, the Departments lack the “expertise” to make such a decision. King, 135 S.Ct. at 2489 (citing UARG, 134 S.Ct. at 2444. Cf. Gonzales, 546 U.S. at 266-67 (“The structure of the CSA, then, conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise.”).

Under the circumstances, in light of the limited interpretive authority, and the non-existent expertise on religious liberties matters, HHS was limited in what sort of accommodations it could give.

The source of this purported authority is an instruction to interpret what types of “preventive care” must be provided by employers. But this delegation cannot justify an authority to craft exemptions that end up relieving the burden on religious liberty for some organizations and not others. Nor can it justify administrative judgment calls regarding what sorts of accommodations impose “minimal” burdens on the free exercise of religion, 78 Fed.Reg. 39887, or avoid implicating an organization in the commission of sin. These are not matters that are tacitly and cryptically delegated to federal agencies. The Departments’ aggrandizement of their own power in this manner, absent any statutory authorization, conflicts with Congress’s longstanding control over issues of religious conscience.

In effect, they were constrained to create an exemption from the mandate–either by excluding the contraceptives or exempting the burdened religious groups altogether–and not erect the Rube-Goldberg contraption that is the most recent accommodation.

Second, Greg asks, what if we’re right?

First, the obvious question: if Cato is correct that HHS is not entitled to grant religious accommodations to the contraceptive coverage regulations, why would Little Sisters nonetheless be exempt from those regulations on religious grounds? According to Cato, once the HHS accommodation leaves the picture, “Hobby Lobby provides the rule of decision and petitioners must be exempted from the mandate.”

Not so, Greg counters:

The Supreme Court ruled that Hobby Lobby was exempt from covering contraceptives because HHS had already created the nonprofit accommodation and had “provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.” This nonprofit accommodation—the one that Cato says that HHS had no authority to offer—was a less restrictive alternative “that achieve[d] all of the Government’s aims while providing greater respect for religious liberty.”

In other words, the Supreme Court said that Hobby Lobby couldn’t be required to provide contraceptive coverage because the nonprofit accommodation was a less-restrictive alternative. Cato now cites Hobby Lobby for the proposition that an exemption is required, but then assumes away the very basis for the Hobby Lobby decision: the nonprofit accommodation was a less restrictive alternative that would ensure that women don’t lose contraceptive coverage.

The second point Greg makes is one that I fear we won’t agree on, for it rehashes the debate between the majority and the dissent in Wheaton College over what exactly did Hobby Lobby hold.

In her dissent in Wheaton College v. Burwell, Justice Sotomayor was befuddled how the Court granted the stay of the injunction. She explained that only a few days earlier, the Court “described the accommodation as ‘a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives.'” She noted that Justice Alito wrote that the accommodation”constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” At the time, I described her conclusion as “overstated.”

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobbyfeared it might, see 573 U.S., at ___-___, 134 S.Ct., at 2801-2802, 2014 WL 2921709, at *42-43 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

With respect to Greg (and Justice Sotomayor), this is not how I read Hobby Lobby. The Court expressly declined to rule whether the exemption was valid for “all” religious groups.

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40

Indeed, in a footnote, Justice Alito specifically offers a rejoinder to Justice Ginsburg’s dissent.

The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.

As I understand the analysis under RFRA, the question is whether there is a “less restrictive” approach that is available. If the answer is yes–and the burden is substantial–the action violates RFRA. However, by labelling an approach “less restrictive,” that doesn’t mean that such an approach would comply with RFRA in all circumstances, or that the Court has leant its imprimatur to the accommodation. Stated differently, Hobby Lobby did not explain that the accommodation at issue in the Little Sisters petition is valid. I don’t suspect we are going to agree on this point, but I acknowledge that there are diverging perspectives, namely 5-4.

Greg counters. If we get rid of the accommodation, then Hobby Lobby doesn’t provide the “rule of decision.”

If the nonprofit accommodation were no longer available, the Supreme Court would have to go back to square one and consider whether RFRA requires an exemption for objecting employers even if there were no less-restrictive way to ensure that affected women receive contraceptive coverage. Indeed, Hobby Lobby turned on the assumption that “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”

Greg has a fair point, but I think it conflates the fact that a least-restrictive means exists, and whether the agency in question has the authority to issue it. We state this point deliberately:

Congress could certainly legislate an accommodation in this area, but this same action becomes ultra vires if taken by an agency lacking statutory authority to make such profound decisions

But wait, Greg replies, didn’t the Court offer its imprimatur on the accommodation? How can you now claim it is ultra vires?

This issue wasn’t presented to the Court, because it didn’t have to be. The only question was whether a least-restrictive means could be used. The answer is yes. The Court didn’t have to delve into this issue. As Justice Alito noted “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.”

In any event, it is for this reason that Cato requested that the Court consider this additional question. It is preserved in the case (the Little Sisters raised APA claims in their initial complaint), and would warrant further briefing.