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The Hill reports that now that the legal challenges are (for the most part) over, the attempts to unravel Obamacare will be through the legislative process. And the process is long:

Three months after their defeat at the Supreme Court, Republicans see a long road ahead for repealing ObamaCare.

“Nobody’s kidding themselves that there will be a repeal bill signed by this president while he’s in office,” House Budget Committee Chairman Tom Price (R-Ga.) said in an interview.

Even the process of using reconciliation–which only requires 51 votes, not 60 votes–has been “messy.”

Republicans’ biggest hurdle in using reconciliation will be keeping track of the rules.

“Reconciliation is a very, very complex and mysterious thing that I think not a single person has complete understanding of,” Rep. John Fleming (R-La.) said.

Discussions have, so far, been kept between the House and Senate budget committees as well as the handful of committees with jurisdiction over healthcare.

The Senate parliamentarian will have perhaps the largest role, ensuring that lawmakers follow the chamber’s Byrd Rule. Under the rule, reconciliation bills cannot increase the deficit, and all provisions must directly relate to spending or revenue. That disqualifies some pieces of ObamaCare, like the mandatory benefits packages, Price said.

“What we’ve been working with our colleagues in the Senate is to try to identify all the things that are able to be repealed, that are possible through reconciliation through the Byrd rule,” Price said. He maintains that they have a lot of options.

“The array of things that are available to us are very broad,” he said, though declined to offer details.

What are they looking to repeal?

Sen. John Barrasso (R-Wyo.), one of the Senate’s major players in the ObamaCare replacement debate, said he and others believe both the individual and employer mandates for insurance can be included in a reconciliation bill. He also pointed to unpopular pieces of the law such as the “Cadillac tax” goinginto effect next year and the Medicare cost-cutting panel known as the Independent Payment Advisory Board.

“I think reconciliation is the best way to get rid of the most egregious parts of the healthcare law,” he said, which he said would include “absolutely every part of the healthcare law that is reconcilable.”

 

I do not understand how these provisions–especially the Cadillac tax–can be eliminated without raising the deficit. Where will they find the money from to make up the difference?

In any event, the GOP recognizes that President Obama will veto any bill, but reconciliation opens opportunities for 2016:

Barrasso, and others, acknowledged that in the end, reconciliation is a chance to boost the party’s chances in future elections. If a reconciliation bill passes this fall, it tees up the healthcare law for the 2016 presidential debates — the arena where most Republicans believe the next ObamaCare fight will play out.

…

Most doubt whether the Obama administration would be willing to support any changes to the law.

“The president is living out there in La-La Land thinking the ObamaCare law is working so well,” Cassidy said. “He is not going to accept significant change. It is his legacy, he loves it.”

“At this point, his end game is preserving the law,” he said.

“It’s much more of a political vote than it is a policy vote because we know the president’s position,” Barrasso said.

One of the themes I’m developing in Unraveled is what problems the next President–Republican or Democrat (I won’t which one when it goes to press!)–will face with the ACA. Beyond calls to repeal, there are structural weaknesses in the law that will implode in 2017 and 2018.

The situation in Rowan County, Kentucky as well as the recent 10th Circuit dissental in the contraception mandate litigation, has highlighted a question concerning RFRA that I do not think the Supreme Court has ever addressed squarely: is the inquiry objective or subjective? Let’s start with the contraceptive mandate. Under the HHS accommodation, religious organizations (such as the Little Sisters of the Poor, whom I filed a brief in support of) claim that they would be complicit in sin, because they are now in a contractual relationship with insurers that cover contraceptives. (Oversimplifying). The government counters that under ERISA, they are not in a relationship with the insurers, and any burden is de minimis. (Also oversimplifying). The government offers an objective perspective–as a matter of law, there is no legal relationship–as the government pays for the entire cost–so there cannot be a burden. The Little Sisters take a subjective position–under their view of the arrangement, by signing the form, they are complicit in sinful activities. A court concluding that the Little Sisters are wrong about the legal arrangement doesn’t in any way challenge what they see as a substantial burden.

Consider Judge Hartz’s dissental from the 10th Circuit:

I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).

The panel decision, and all other courts of appeals to confront this issue, take a decidedly objective analysis. The dissental would consider it from the perspective of those who assert that their religious liberty is being burdened–regardless of how bizarre their views may seem.

Next, let’s consider the current kerfuffle over the incarcerated clerk in Kentucky (alliteration!). First, read Marty Lederman’s cogent and comprehensive analysis of the case–it is the best item I’ve seen on the topic. Grossly oversimplifying, Kim Davis argues that she would be complicit in sin if she, or anyone under her supervision, issues a marriage license to a same-sex couple with her name on it. Marty explains (correctly in my opinion) that under Kentucky law, she is wrong, and that a deputy clerk is eligible to issue the marriage license. Therefore, if her deputy issues the license without Davis’s name on it, there can’t possibly be a burden to Davis, because she is not legally responsible for it under Kentucky law. Her name on the certificate has no legal significance. That’s the objective perspective. But under the subjective perspective, Davis still fees complicit. Nothing any judge could conceivably tell her will change how she feels. A court concluding that Davis is wrong about the law–and Judge Bunning professed confusion about whether licenses without her name would be valid–does not in any way impact what Davis views as a burden. If the question is viewed purely legally from an objective perspective, then there is no burden. But if it becomes a mixed question from the subjective perspective, then there is a burden. This is not to say that the burden is substantial, or that least restrictive means exist under the state RFRA. Rather, how you frame the inquiry entirely changes the analysis.

To the best of my knowledge, the Supreme Court has never held that the inquiry under RFRA is subjective or objective. The question in Hobby Lobby was unnecessary because the government did not challenge the sincerity of the beliefs of Hobby Lobby, and also, there was no legal question–the mandate forced Hobby Lobby to purchase the contraceptives. This issue will be in play in the Little Sisters, as the parties fight over how best to understand the mandate–from an objective or subjective perspective.

The Weekly Standard published an article by Randy Barnett and me offering five lessons of how the President should select the next Supreme Court nominee. Our fourth lesson is that Presidents should focus on the “Constitution, not issues du jour.” We contend that it is myopic for a President to pick a Justice with an eye on how the Judge may vote on specific issues of the day. One species of this argument can be described as what Randy described as “restraint for thee, but not for me.” In other words, when my party is in power, we want the courts to be restrained to let our agenda thrive. For example, the Bush Administration appointed judges with an eye towards bolstering the war on terror. But this perspective is extremely short-sighted, because once a different party is in power, the calls for restraint switch rapidly. The same sort of advocates who wanted restraint on the war on terror, call for engagement with respect to Obamacare.

Jennifer Rubin made a related point on Twitter, writing that “objectively. if legislature and executive understand constitutional obligations courts don’t have heavy lift.” She isn’t wrong, but the history of our country, with the Presidency switching between the parties every eight years or so, is that there are radically different understanding of constitutional obligations. Appointing courts with an eye towards a specific four-to-eight year period ignores the other two decades during which they serve. It is for this reason that the focus should be on broader constitutional philosophy, rather than the immediate benefits or minimalism.

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.

In the Weekly Standard, Randy Barnett and I offer five lessons that should guide the next GOP selection for the Supreme Court. Here is the introduction, and the five lessons:

When Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment …

2. Paper trails are an asset, not a disqualification

3. Reject clichéd calls for ‘judicial restraint’

4. Focus on the Constitution, not issues du jour

5. Focus on clauses, not cases

Randy and I offer a lot of different ideas of how best to select judges, and learn from past selections (both the good and the bad). Our sincere hope is that these guidelines elevate the debate over judicial selections from hackneyed cliches to meaningful discourse.