Day: January 12, 2017

Following Zubik Punt, Labor Department Says “No Feasible Approach” To Resolve Religious Objections

As I discuss in Unraveled, the Supreme Court’s remand in Zubik was a delusional punt: there was no compromise to be had over self-insured plans, yet the Court pretend the parties were close to a deal. After the remand, the Obama administration issued a Request for Information about possible arrangements that would satisfy all objections. None were to be found.

In a new FAQ from the Labor Department (which has jurisdiction over ERISA), the Obama Administration acknowledged that “no feasible approach” could be identified.


No. As described in more detail below, the comments reviewed by the Departments in response to the RFI indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage. The comments demonstrate that a process like the one described in the Court’s supplemental briefing order would not be acceptable to those with religious objections to the contraceptive-coverage requirement. Further, a number of comments illustrate that the administrative and operational challenges to a process like the one described in the Court’s order are more significant than the Departments had previously understood and would potentially undermine women’s access to full and equal coverage. For these reasons, the Departments are not modifying the accommodation regulations at this time.

Specifically, the FAQ states that adopting the Court’s proposed solution does not address the religious objections:

In light of the comments received, the Departments have determined not to amend the regulations at this time. On the one hand, comments from parties before the Supreme Court (and other objecting employers) do not suggest that the change identified by the Supreme Court would resolve their concerns. On the other hand, the Departments received comments stating that eliminating written notification would create significant administrative problems and potential legal liabilities for issuers, and would hinder women’s access to care. As described in greater detail below, these comments have shown that the elimination of the written notification requirement would raise complications that would undermine the statute’s goal of ensuring full and equal health coverage for women, the extent of which were not known to the Departments at the time the government filed its supplemental briefs in Zubik.

I could have predicted this impasse based on the supplemental briefings in Zubik. The parties acknowledged there was a huge gap between their positions that could not be reconciled. The Supreme Court pretended that problem didn’t exist. In all likelihood, the Eight Justices thought that by punting, the case would come back up with a ninth Justice. But to everyone’s surprise, Trump won! And now, through executive action, he can resolve this dispute. As I noted during a panel on reproductive justice at AALS, the Obama administration’s decision to define “preventive care” in a blog post (seriously), and not through the notice-and-comment process, means that the new administration can simply modify the sorts of products that insurers are required to provide. With a small tweak, any insured entity with a bona fide religious objection can simply request that birth control be excluded from their plans. For affected employees, the government can offer contraceptive coverage through different means that do not impose a substantial burden on religious exercise. (That coverage could be provided through alternate means suggests that the accommodation was never the “least restrictive means.”).

As an aside, the Labor Department actually cites SCOTUSBlog for links to their briefs!

Stay tuned.

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SCOTUS Calls for Response in West Virginia v. HHS (Administrative Fix Case)

The never-ending Obamacare litigation chugs along. Back in July 2014, West Virginia challenged the legality of the so-called administrative fix, which allowed insurers to continue offering plans that were otherwise void under the Affordable Care Act’s mandates. Both the district court and the D.C. Circuit dismissed the case on standing grounds. In November, West Virginia filed a petition for a writ of certiorari. Yesterday, the Court called for a response.

Unless Acting SG Gershengorn decides to scramble a BIO in eight days (I’ve seen crazier pleadings), responding to this petition will fall to President Trump’s Justice Department. I’ve written at length that the new government should repudiate the various illegal delays, modifications, and suspensions of the Affordable Care Act. This brief in opposition offers an opportunity to do so. For institutional reasons, the SG is unlikely to agree that the state has standing, but this brief can be used to assert that the policy has been (hopefully) repudiated  because, “on further reflection,” the government has decided it is unlawful.

Even if the government does not take this step, there may be questions about mootness. West Virginia addresses this issue on the final two pages of their cert petition:

Even if the new Administration were to rescind the Administrative Fix or if the Affordable Care Act were to be repealed in whole or in part, the D.C. Circuit’s decision cannot be permitted to stand. As a threshold matter, the underlying issue would arguably fall within an exception to mootness. The practice of claiming enforcement discretion to entirely suspend federal laws for temporary periods of time is likely to recur and continue to escape review. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016). Moreover, the voluntary cessation of challenged conduct “does not ordinarily render a case moot.” Knox v. Serv. Employees Int’l Union, Local 1000, 132 S. Ct. 2277.

But more importantly, even if this Court were to determine that the matter has become moot or that mootness should be evaluated in the first instance by the D.C. Circuit, this Court should still grant certiorari and vacate the decision below before remanding for further consideration. The clear conflicts between the D.C. Circuit’s decision and several of this Court’s precedents, together with the decision’s potentially significant impact on federal- state relations, require that this Court take at least those steps to ensure consistency and protect our system of dual sovereignty.

Stay tuned.

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Video: AALS “Hot Topic” Panel on New Frontiers in Reproductive Rights and Justice

On January 6, I presented on a AALS “Hot Topic” panel on titled “New Frontiers in Reproductive Rights and Justice.” The slated roster was:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Khiara M. Bridges, Boston University School of Law
Speaker: Melissa E. Murray, University of California, Berkeley School of Law
Moderator: Kate Shaw, Benjamin N. Cardozo School of Law
Speaker: Neil S. Siegel, Duke University School of Law
Speaker: Reva B. Siegel, Yale Law School

However, Neil and Reva Siegel were unable to attend.

As originally designed, I had planned to discuss how the lower courts would handle Zubik in a Clinton administration, but in light of the election, the talk took on a different tenor. Here is the video.

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Audio: “The Future of the Supreme Court” at the Baylor Federalist Society Chapter

On January 10, the Baylor Federalist Society hosted me for a discussion on “The Future of the Supreme Court.” The talk centered around my forthcoming foreword in the NYU Journal of Law & Liberty, titled SCOTUS after Scalia. Listen for a preview. I am grateful to Professor Brian Serr for offering comments after my remarks.

I tried to livestream it using Google hangout, but I realized early on that the audio was not working so I cut it short. Here are short visuals.

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ConLaw Class 1 – Our Founding Documents

Class 1 – 1/12/17

Our Founding Documents

  • The Origins of the Constitution (3-4)
  • The Declaration of Independence (4- 8)
  • Read the Declaration of Independence (National Archives)
  • The Articles of Confederation (21-22)
  • Read the Articles of Confederation (xlix – liv)
  • Drafting and Ratifying the Constitution (22-25)
  • Read the Constitution of the United States (xxxi – xl).
  • The Origins of the Bill of Rights and Anti-Federalist Complaints (36)
  • Read the Amendments to the Constitution (xl-xlvii)

Note: Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.

The lecture notes are here.

This is the Declaration of Independence (July 4, 1776).


This is the first page of the Articles of Confederation (Ratified in 1781).


These are the four pages of the Constitution of the United States of America. The Constitution was proposed on September 17, 1787, and ratified on June 21, 1788 with the ratification of New Hampshire, the 9th State to join the Union.


These are the first Ten Amendments to the Constitution, proposed in 1789 and ratified in 1791 (the phrase “The Bill of Rights” only came into common parlance following the Civil War).




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Prop1 Class 1 – From Nature to Commons

Class 1 – 1/12/17

From Nature to Commons

  • Johnson v. M’Inotsh, 3-10
  • Notes and Questions, 10-18
  • Toward a Theory of Property Rights, 40-46

Hello everyone and welcome to Property I.

Today we will cover property rights created through discovery or conquest with the case of Johnson v. M’Intosh.

During class, I will type in real time the lecture notes on this document.

This is Chief Justice John Marshall (very nice sideburns):


This is John Locke (he resembles Mr. Burns, if he had hair). Here is a link to Chapter V of Second Treatise on Government. Chapter V focuses on property. Chapter XVI focuses on “Conquest.”


This is Hugo Grotius (has a Shakespeare thing going for him–he was Dutch):


This is Samuel Pufendorf (nice wig):


Here is a map of the land at issue in Johnson.


This is Harold Demsetz:


This is Ronald Coase. He died in 2013 at the age of 100!


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Video: AALS “Hot Topic” Panel on Federal Power Over Immigration

On January 5, 2017, I spoke on the AALS “Hot Topic” Panel on Federal Power over Immigration. Here was the roster:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Jennifer M. Chacon, University of California, Irvine School of Law
Speaker: Jill E. Family, Widener University Commonwealth Law School
Speaker: Anil Kalhan, Drexel University Thomas R. Kline School of Law
Moderator and Speaker: Ilya Somin, Antonin Scalia Law School at George Mason University

As originally designed, we expected to talk about how a Clinton administration would continue the Obama administration’s executive actions with respect to immigration. I would serve as the foil arguing that the separation of powers renders these policies illegal. The other right-of-center prof on the panel, Ilya, takes the position that Congress has power only over naturalization (that is, granting citizenship) but has no general power over restricting movement into the country (absent some national security interest).

However, as with virtually all other panels at AALS, the focus shifted after the election. My remarks focus on U.S. v. Texas, which now is not nearly so hot–DAPA will likely be rescinded in about 10 days. I also welcomed immigration scholars to the federalism-fold. Indeed, progressive scholars and sanctuary city advocates are now turning to precedents like Printz v. United States and New York v. United States to shield immigrations from federal enforcement. I am glad that my colleagues have at least seen the light on federalism, though in my rebuttal time, I urged some form of consistency–federalism can protect liberty in many spheres, beyond protecting sanctuary cities. This remark did not go over well in a room full of immigration profs. One of the other panelists strongly disagreed, and quoted Emerson, who said “consistency is the hobgoblin of little minds.” I’ll stand by consistency any day.

Here is the video:

And here is a group shot.


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