King v. Burwell and the Little Sisters of the Poor

September 29th, 2015

The Daily Beast published an Op-Ed by Ilya Shapiro and me focusing on how the Court’s decision in King v. Burwell may provide an alternate ground of resolving the next contraceptive mandate case the Court will (almost certainly) take. The article is based on our amicus brief in support of the Little Sisters of the Poor. Here is a sample:

Ironically, the precedent that most supports the Little Sisters’ claim is King v. Burwell, in which the Supreme Court upheld the payment of billions of dollars of subsidies in states that declined to establish health-care exchanges. But in doing so, Chief Justice John Roberts’ majority opinion rejected the Treasury Department’s interpretation of Obamacare that gave itself such awesome power. Roberts found that Congress could not have delegated this vast authority to the IRS in an area of “deep ‘economic and political significance,’” in light of the fact that the agency has “no expertise in crafting health insurance policy.”

If the nation’s tax authority lacked the power to interpret a statutory provision regarding tax credits, then—to use the chief justice’s own words—“[i]t is especially unlikely that Congress would have delegated this decision” on crafting religious accommodations to HHS, “which has no expertise in crafting” them. To quote another recent case where the Court refused to defer to an administrative agency,UARG v. EPA (2014), here the agencies are “laying claim to an extravagant statutory power” affecting fundamental religious liberty interests—a power that the ACA “is not designed to grant.”

HHS’s regulatory incompetence prevents it from forcing the Little Sisters to be complicit in what they view as sin. If executive agencies lack the interpretive authority to craft accommodations, then RFRA (and Hobby Lobby) dictate that religious employers must be exempted from the contraceptive mandate.