Event at AEI on 12/12: “Obamacare’s administrative law space: Navigating the next frontier”

On Monday, December 12, the American Enterprise Institute is hosting an event titled “Obamacare’s administrative law space: Navigating the next frontier.” Tom Miller organized this panel to discuss all facets of the ACA. I’ll be joined by Joel Ario (Manatt Health), Daniel Hemel (University of Chicago), David Hyman, (University of Illinois), Daniel Meron (Latham & Watkins), and Adam White (Hoover Institution).

If you are in town, I hope you can attend.



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Cert Granted in Church-Plan Cases. Upcoming Decision for Outgoing and Incoming SG On Brief Due 1/23/17

Today the Supreme Court granted certiorari in three cases that consider what types of religious organizations can qualify for a “church” plan under ERISA. The plaintiffs in that case are challenging a 30-year-old IRS Rule. As I understand it, the Obama Administration did not file a brief in the lower courts, nor did it file a cert-stage brief. Before the Supreme Court, the Solicitor General will almost certainly have to file a merits brief. But who will submit it?

Thanks to the helpful calculations of Sean Marotta of #AppellateTwitter, the SG’s brief would be due on January 23, 2017–three days after the inauguration. At some point beforehand, the Solicitor General would usually meet with the Departments of Treasury, Labor, and other administration officials to determine the government’s position. But here we are at a crucial juncture. There is a strong chance that the Trump Administration would take a different position on the scope of church plans than the Obama Administration has. (I am already having awful flashbacks to ERISA from my Zubik writings).

In an ideal world, with a “successful transition,” the outgoing Solicitor General would coordinate with the incoming Solicitor General, so that a brief could be timely filed on January 23. Or, alternatively, there could be some sort of coordination, and the Court can be asked for an extension. Sean noted that with an extension, top-side amici would be due on February 6, which would be tight to still argue this term.

What that meeting would look like is complicated. Officials who are not yet confirmed–such as the incoming Solicitor General, Solicitor of Labor, and Secretary of the Treasury–would attend meetings that are protected by the attorney client privilege. Does anyone have any insights into how this role was performed by the Bush and Clinton administrations?

Worse-case scenario would be an Obama brief filed on January 19, and promptly withdrawn by the new SG (Noel Francisco?). This would not be unprecedented.

For example, the Bush Administration filed a cert petition in EPA v. NJ on August 8, 2008. On February 6, 2009–two days after it was distribued for conference–Acting Solicitor General Edwin Kneedler moved to dismiss the petition.

Since the petition for a writ of certiorari was filed, EPA has decided, consistent with the court of appeals’ ruling, to develop appropriate standards to regulate power-plant emissions under Section 7412. In light of EPA’s decision, the government no longer seeks review of the court of appeals’ holding that Section 7412(c)(9) provides the sole mechanism for delisting power plants as a covered source category.

In other words, the Obama administration–upon further reflection/election–decided to reverse the prior President’s environmental policy. The Court obliged and dismissed the case.

Jon Adler’s tweet is on point:

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DOJ Moves To Postpone Post-Zubik Contraceptive Mandate Cases Until February 28, 2017

As January 20 rapidly approaches, the Obama Administration has taken affirmative steps to wind down its role in the litigation concerning U.S. v. Texas, but not in House of Representatives v. Burwell. With respect to the contraceptive mandate litigation, the government has taken the former approach.

On November 30, the Justice Department filed notices in several courts of appeals, asking for an extension until February 2017 to file any further responses. For example, here is the status report from the Eighth Circuit:

Pursuant to this Court’s order of October 3, 2016, the Departments file this status report to inform the Court of recent administrative developments. As we explained in our prior Status Reports, the Departments issued a Request for Information (RFI) to determine whether further modifications or alternatives to the existing accommodation could resolve the Religious Freedom Restoration Act objections asserted by various organizations while still ensuring that the affected women seamlessly receive full and equal health coverage, including contraceptive coverage. See 81 Fed. Reg. 47,741 (published July 22, 2016) (comment period closed September 20, 2016). In response to the RFI, the Departments received approximately 54,000 comments. The Departments are evaluating the information submitted to determine whether changes to the current accommodation regulations should be made and, if so, to inform the nature of those changes. The Departments respectfully request that the Court take no action at this time and allow the government 90 days, to and including February 28, 2017, to submit its next status report.

Though the reports do not note the impetus of this request, it is safe to assume that the Obama Administration is now handing the case over to the Trump administration.

Lyle Denniston reports that only one plaintiff, Heartland Christian College, objected to the continuance. The College wants a prompt resolution. Their objection is rooted in one of the greatest failings of Zubik–as I discuss in Unraveled and Gridlock–the failure to address “self-insured” plans.

In addition, it should be noted that CNS Ministries and HCC have self- insured plans. This arrangement was not addressed in the Zubik order, which contemplates only nonprofit objectors who have outside insurance issuers that provide health coverage to employees. See Zubik at 1560 (“Petitioners have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”) (emphasis added). Here the insurers are the appellees themselves, CNS Ministries and HCC. There is no outside insurance company between these appellees and their employees, and to our knowledge, the Government has never demonstrated that it has the authority, by statute or implementing regulation, to direct an objecting employer’s TPA to provide abortifacients to employees absent the employer’s authorization or approval. The Government has not acknowledged this issue. The Government should accordingly either provide a firm date for proposing a workable accommodation going forward, dismiss its appeal in this case, or agree to proceed in this Court on the merits.

This argument is 100% correct. The government lacks the power to compel self-insured plans to direct the college’s third-party administrator to provide contraceptive coverage, without the college’s written authorization. Nor can they fine such employers that do not comply. This is a pointless legal mandate that serves no purpose. One of the first executive actions a Trump Administration could take would be to simply exempt employers with self-insured plans from the contraceptive mandate, altogether. (A similar treatment should be applied to all employers with church plans) That would eliminate the biggest conflict the Court could’t resolve. I discuss this option in my post-election analysis of Zubik.

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FantasyJustice Update (11/30/16): A Surge for Justice Cannady

We have a new player in the FantasyJustice market. In the past 24 hours, Justice Charles Canady of the Florida Supreme Court (SCOFLA for the cool kids) has received 102 votes (52 from unique IP addresses). That puts him into fourth place, trailing Judge Ryan in third, Judge Pryor in second, and Judge Gorsuch in first. Following Justice Canady are Judge Stras in fifth, Judge Sykes in sixth, and Judge Kethledge in seventh. In due time, we will discuss these surges–for now, it is a fascinating study.11-30



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CJ Roberts, without any sense of Irony: “We can’t just write a different statute because we think it would be more administrable”

During oral arguments in Jennings v. Rodriguez, Chief Justice Roberts criticized the Ninth Circuit’s application of the constitutional avoidance doctrine. As best as I can tell, he exhibited not even the slightest sense of irony.

First, Roberts noted that the avoidance doctrine “looks an awful lot like drafting a statute.” Courts, the Chief reminds us, exist to “read the statute,” but they “can’t just write a different statute because we think it would be more administrable.”



For a competing perspective, see the Chief Justice’s opinions in NFIB v. Sebelius with respect to the individual mandate and the Medicaid expansion.

Justice Alito, perhaps needling his colleague, offered this definition of “constitutional avoidance,” premised on the court thinking it doesn’t “have the guts to say [a statute] is unconstitutional.”


Later in the argument, the Chief put his imprimatur on jurisprudential guts.



Either the Chief is trolling here–if so, well done JGR–or he lacks any sense of self-awareness.



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When President Washington Sought “Advice and Consent” from the Senate in 1789

One of the earliest efforts of the President to seek the Senate’s “advice” came from none other than George Washington. This stranger-than-fiction account was narrated in the journal of Senator William Maclay of Pennsylvania. On August 22, 1789, President Washington arrived in the Senate Chamber. “He rose and told us bluntly,” Maclay wrote, “that he had called on us for our advice and consent to some propositions respecting the treaty to be held with the Southern Indians.” President Washington’s message was barely heard over the din of the carriages. Senator Robbert Morris of Pennsylvania rose and carped that “the noise of the carriages had been so great that he really could not say that he had heard the body of the paper which had been read, and prayed that it might be read again.” After President Washington’s letter was re-read, Vice President Adam asked, “Do you advice and consent, etc.” Maclay recalled that “there was a dead pause.”

Senator Maclay broke the silence, and asked that the treaty be studied further “to inform ourselves as well as possible on the subject.” Maclay wrote that he “cast an eye at the President of the United States” and “saw he wore an aspect of stern displeasure.” Senator Morris then asked that President Washington’s proposal “be referred to a committee of five.” Senator Pierce Butler of South Carolina objected that “Committees were an improper mode of doing business,” and “it threw business out of the hands of the many into the hands of the few.” Maclay defended the use of committees, and suggested the vote be postponed until Monday, even if it results in “possible inconvenience”

In a scene too remarkable to imagine, President Washington “started up in a violet fret.” In words emphasized in Maclay’s journal, the General barked “This defeats every purpose of my coming here.” Washington had visited the Senate with Secretary of War Henry Knox, who could “give every necessary information.” After Washington “cooled, however, by degrees,” he did not object to a delay until Monday, “but declared he did not understand the matter of commitment” to a committee. Washington then “withdr[e]w” with a “discontented air,” that could be described as “sullen dignity.” Presidential frustration with indecisive congresses is as old as the Republic.

On Monday, the Senate reconvened, with President Washington wearing “a different aspect” from his previous visit. After a “tedious debate,” and several modifications to the treaty, the Senate provided its advice and consent. “This closed the business. The President of the United States withdrew, and the Senate adjourned.”

This passage is adapted from my forthcoming Foreword in the NYU Journal of Law & Liberty, titled “SCOTUS After Scalia.”

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