Yesterday, I blogged about a post Greg Lipper wrote on the Cato amicus brief in support of the Little Sisters of the Poor. Greg kindly wrote a follow-up post, which I will reply to here.

First, Greg repeats his objection to what he calls Cato’s choice between a “bludgeon and no tools at all.”

First, on the question of agency authority to issue religious accommodations, Josh incorrectly suggests that I miss a subtelty in his argument. Josh/Cato say that the Department of Health and Human Services (HHS) has authority to issue religious accommodations, but that it may not decide “which organizations were worthy of the exemption, and which would be burdened by the accommodation.” I address this argument in my original post: the Cato brief assumes that religious accommodations are all-or-nothing, but that is now how the Religious Freedom Restoration Act (RFRA) works. RFRA details when accommodations are available and when they are not (and the Establishment Clause limits accommodations that unduly harm third parties). So an agency (HHS, or otherwise) cannot, as a practical matter, offer accommodations without determining who is eligible for that accommodation and who is not. As I said in my original post, Cato “would force agencies to choose between a bludgeon and no tools at all, even when the agency would need a scalpel to craft religious accommodations consistent with RFRA.”

As much as we wish we could (kidding), Cato can’t force agencies to do, or not do anything. What constrains the agency is the authority they are given by Congress. Here, in the absence of any hint that Congress delegated the interpretive authority needed to afford some religious organizations an exemption, but arbitrarily decide others get the accommodation, HHS is limited what it can do to comply with RFRA. Agencies do not have a free-range license to do anything that would bring their actions in compliance with RFRA, like Congress could. This isn’t a question of what they can identify as a least-restrictive means, but what can they do within their powers to achieve a least-restrictive means. If the latter action is ultra vires, you do not even get to the RFRA analysis. Let me say this another way. Neither RFRA nor the ACA gives an agency plenary authority to do whatever it wants to avoid a RFRA violation–they can only do what they have the interpretive authority to do.

Second, Greg notes that we retreated in our position that Hobby Lobby provides the rule of decision.

Second, Josh’s post seems to retreat from his brief’s argument that Hobby Lobby “supplies the rule of decision” and necessarily requires an exemption for Little Sisters. In his post, he begins a merits debate, and he says that my post “rehashes the debate between the majority and dissent in Wheaton College over what exactly did Hobby Lobby hold.”

No. In the Wheaton College order, the dissent took the position that Hobby Lobby necessarily leads to the conclusion that the nonprofit accommodation satisfies RFRA’s requirements. I think that’s the best reading of Hobby Lobby, and certainly of Justice Kennedy’s position; all seven federal appeals courts to consider the question agree with me.

Retreat? Hardly. Our reading is based on the Hobby Lobby majority as ratified by six Justices in Wheaton College. The Wheaton College dissent (only Justices Ginsburg, Sotomayor, and Kagan) agree with Greg. So to the extent that there is a “debate,” it is between the Hobby Lobby majority and the Wheaton College dissent. The majority opinion provides the rule of decision. The dissent does not.

But Greg suggests that the Hobby Lobby majority “based its less-restrictive-alternative holding on the presence of the nonprofit accommodation.” Let’s take a look at what the Court wrote (which Greg quotes):

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

There is absolutely nothing in our brief that says “the same system cannot be made available” for religious non-profits. Congress, with a three-page statute, could do it quite easily. The fact that HHS made this system “available”–as I noted in my previous post–is not an analysis of whether it was ultra vires. This issue wasn’t briefed, and wasn’t necessary to resolve Hobby Lobby. HHS could provide this exact same accommodation, once Congress affords them the interpretive authority to do so.

To anticipate Greg’s (likely) response–but wait, Congress is gridlocked, they won’t do anything to fix the ACA. Two responses. First, isn’t that the point. Congress–even the Democratic Congress that enacted the ACA–would have never given HHS this sort of blanket authority to balance religious liberty. (We argue that they didn’t). This cannot possibly be a “permissible” construction of the statute. This makes our ultra vires argument that much stronger.

Second, this reply sounds an awful lot like Solicitor General Verrilli’s response in King v. Burwell to Justice Scalia’s question about whether Congress could amend the ACA to provide subsidies in states that did not establish exchanges.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­

(Laughter.)

To this, I will reply with Justice Kennedy’s remarks that notwithstanding “Gridlock,” the Court must “assume that we have 3 fully functioning branches of the government, committed to proceeding in good faith in good faith to resolve the problems of this Republic.” Indeed, this fits with the Court’s doctrine of One Last Chance–Congress could fix this problem without having to further resolve the difficult RFRA question. Let the elected branches decide best how to accommodate religious liberty and access to contraceptives.

With respect, I will save all future arguments for the merits stage briefing. I thank Greg deeply for helping to refine the arguments here–this exercise was extremely helpful.