Check out The Weekly Standard for an article authored by Randy Barnett and me, titled, “The Next Justices. Filling Supreme Court vacancies: a guide for GOP candidates.” The article is online now.
I love the cover art. Though I had no hand in designing it, I’ll note the similarity to the graphic for FantasySCOTUS.
At the Bill of Health blog, my buddy Greg Lipper has a detailed rejoinder to the amicus brief I filed along with Ilya Shapiro on behalf of the Cato Institute in support of the Little Sisters of the Poor’s cert petition. (I recently became a Cato Adjunct Scholar–this is an unpaid position). Greg and I had an extended twitter debate about this a few weeks ago, so I figured something more formal would follow. Greg did not disappoint–please take a moment and read the post, and then come back. Back already? Ok, let’s start.
Here is how Greg characterizes our argument:
Instead, Cato makes the following argument: (1) in light of King v. Burwell’s statements about agency deference, HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act, and (2) without a religious accommodation, the contraceptive coverage requirement is unenforceable against nonprofit organizations with religious objections.
This is very, very close, but not exactly right–and the subtle difference makes a huge impact on our argument. We don’t argue that “HHS had no authority to offer religious accommodations.” Our position is more elementary, and it focuses on how HHS has exempted some religious organizations, and accommodated others. Allow me to walk you through it.
First, it is important to distinguish the exemption from the accommodation (most people, myself included, had no idea what the difference was when I started working on this case):
In response, the Departments took two decisions to balance religious liberty with their delegated authority to mandate coverage of “preventive care.” First, they automatically exempted certain “religious employer[s]”—limited to houses of worship and their auxiliaries—from the mandate; their employees would not receive contraception coverage. 76 Fed.Reg. 46623. Second—and at issue in this petition—they created an “accommodation” to the mandate for other religious employers. By objecting to the mandate, and providing information about their insurers, the organizations are not required to pay the cost of the objected-to contraceptives, but their employees still receive coverage. The Departments do not claim that either the exemption or the accommodation was compelled by RFRA or the First Amendment. Instead, they claim that 42 U.S.C. § 300gg-13(a)(4), among other related provisions, provides the statutory authority to decide which religious organizations should be exempted, and which should be burdened by the accommodation.
Second, our argument centers around the fact that HHS decided which religious organizations were worthy of the exemption, and which would be burdened by the accommodation (the government concedes that the accommodation does burden, however slightly). This is not the equal protection argument advanced by Judge Leon in the March for Life case, but it is in the same ballpark.
When Congress is silent on how religion should be accommodated, executive-branch agencies do not get carte blanche to pick among religious groups that should be exempted from a mandate that imposes a substantial burden on free exercise, nor can they fashion ad hoc accommodations. Congress could certainly legislate an accommodation in this area, but this same action becomes ultra vires if taken by an agency lacking interpretive authority to make such profound decisions. “It is especially unlikely that Congress would have delegated this decision to” the Departments, “which ha[ve] no expertise in crafting” religious accommodations “of this sort” without clear statutory guidance. King, 135 S.Ct. at 2489 (citing Gonzales v. Oregon, 546 U.S. 243, 266–267 (2006)).
Third, HHS’s offered the exemption to houses of worship, but not to religious organizations like the Little Sisters because their employees are “less likely” than the former “to share their employer’s . . . faith.” This is an argle-bargle-jiggery-pokery-apple-sauce cocktail.
Further, the Departments’ justifications for their accommodation strategy reflects their blinkered approach to protecting religious free exercise. The Departments offered the exemption to houses of worship but not associated organizations based solely on the conclusory assertion that employees of the latter are “less likely” than the former “to share their employer’s . . . faith.” 78 Fed.Reg. 39887. That HHS refused to exempt people who work for the Little Sisters of the Poor—a group of nuns who vow obedience to the Pope!—is a testament to how out-of-their-league the Departments were in evaluating and responding to burdens on religion. The fact that the rulemaking is premised not on health, labor, or financial criteria, but on the Departments’ own subjective determination of which employees more closely adhere to the religious views of their employers, “confirms that the authority claimed by” the Departments “is beyond [their] expertise and [is] incongruous with the [ACA’s] statutory purposes and design.” Gonzales, 546 U.S. at 267.
Based on Gonzales v. Oregon, and more recently King v. Burwell, such a decision is frankly not within the “expertise” of the agencies. It is not a permissible construction of the statute.
So let’s go back to Greg’s initial claim: “HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act.” He adds, “Cato seeks—in the name of religious liberty!—to prevent regulatory agencies from granting accommodations to entities with religious objections to regulations.”
Not at all. HHS can, and should offer accommodations where its actions would violate RFRA. Indeed, they are required to under RFRA. However, agencies cannot take any actions they deem expedient in order to comply with RFRA. Rather, like all administrative action, it must be performed within the agency’s “expertise” and “interpretive authority” delegated by Congress. This was the lesson of King v. Burwell–recall the Court rejected claims that Treasury had authority to interpret a statute about tax credits. As we frame it in the brief:
The Departments’ decision regarding whether and how to offer a religious accommodation is the quintessential “major question” of profound social, “economic and political significance.” Brown & Williamson, 529 U.S. at 1315. Even if the “preventive care” mandate is ambiguous in this regard, the accommodation cannot possibly be a “permissible construction of the statute.” Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). “The idea that Congress gave the [Departments] such broad and unusual authority through an implicit delegation in the” broad purposes of the ACA “is not sustainable.” Gonzales, 546 U.S. at 266-67. The accommodation “exceeds the bounds of the permissible.” Barnhart v. Walton, 535 U.S. 212, 218 (2002).
In light of the narrow “breadth of the authority” that Congress has afforded to the Departments over this controversial issue, the Court is not “obliged to defer . . . to the agency’s expansive construction of the statute.” Brown & Williamson, 529 U.S. at 160. Indeed, the Departments lack the “expertise” to make such a decision. King, 135 S.Ct. at 2489 (citing UARG, 134 S.Ct. at 2444. Cf. Gonzales, 546 U.S. at 266-67 (“The structure of the CSA, then, conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise.”).
Under the circumstances, in light of the limited interpretive authority, and the non-existent expertise on religious liberties matters, HHS was limited in what sort of accommodations it could give.
The source of this purported authority is an instruction to interpret what types of “preventive care” must be provided by employers. But this delegation cannot justify an authority to craft exemptions that end up relieving the burden on religious liberty for some organizations and not others. Nor can it justify administrative judgment calls regarding what sorts of accommodations impose “minimal” burdens on the free exercise of religion, 78 Fed.Reg. 39887, or avoid implicating an organization in the commission of sin. These are not matters that are tacitly and cryptically delegated to federal agencies. The Departments’ aggrandizement of their own power in this manner, absent any statutory authorization, conflicts with Congress’s longstanding control over issues of religious conscience.
In effect, they were constrained to create an exemption from the mandate–either by excluding the contraceptives or exempting the burdened religious groups altogether–and not erect the Rube-Goldberg contraption that is the most recent accommodation.
Second, Greg asks, what if we’re right?
First, the obvious question: if Cato is correct that HHS is not entitled to grant religious accommodations to the contraceptive coverage regulations, why would Little Sisters nonetheless be exempt from those regulations on religious grounds? According to Cato, once the HHS accommodation leaves the picture, “Hobby Lobby provides the rule of decision and petitioners must be exempted from the mandate.”
Not so, Greg counters:
The Supreme Court ruled that Hobby Lobby was exempt from covering contraceptives because HHS had already created the nonprofit accommodation and had “provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.” This nonprofit accommodation—the one that Cato says that HHS had no authority to offer—was a less restrictive alternative “that achieve[d] all of the Government’s aims while providing greater respect for religious liberty.”
In other words, the Supreme Court said that Hobby Lobby couldn’t be required to provide contraceptive coverage because the nonprofit accommodation was a less-restrictive alternative. Cato now cites Hobby Lobby for the proposition that an exemption is required, but then assumes away the very basis for the Hobby Lobby decision: the nonprofit accommodation was a less restrictive alternative that would ensure that women don’t lose contraceptive coverage.
The second point Greg makes is one that I fear we won’t agree on, for it rehashes the debate between the majority and the dissent in Wheaton College over what exactly did Hobby Lobby hold.
In her dissent in Wheaton College v. Burwell, Justice Sotomayor was befuddled how the Court granted the stay of the injunction. She explained that only a few days earlier, the Court “described the accommodation as ‘a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives.'” She noted that Justice Alito wrote that the accommodation”constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” At the time, I described her conclusion as “overstated.”
Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobbyfeared it might, see 573 U.S., at ___-___, 134 S.Ct., at 2801-2802, 2014 WL 2921709, at *42-43 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
With respect to Greg (and Justice Sotomayor), this is not how I read Hobby Lobby. The Court expressly declined to rule whether the exemption was valid for “all” religious groups.
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40
Indeed, in a footnote, Justice Alito specifically offers a rejoinder to Justice Ginsburg’s dissent.
The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.
As I understand the analysis under RFRA, the question is whether there is a “less restrictive” approach that is available. If the answer is yes–and the burden is substantial–the action violates RFRA. However, by labelling an approach “less restrictive,” that doesn’t mean that such an approach would comply with RFRA in all circumstances, or that the Court has leant its imprimatur to the accommodation. Stated differently, Hobby Lobby did not explain that the accommodation at issue in the Little Sisters petition is valid. I don’t suspect we are going to agree on this point, but I acknowledge that there are diverging perspectives, namely 5-4.
Greg counters. If we get rid of the accommodation, then Hobby Lobby doesn’t provide the “rule of decision.”
If the nonprofit accommodation were no longer available, the Supreme Court would have to go back to square one and consider whether RFRA requires an exemption for objecting employers even if there were no less-restrictive way to ensure that affected women receive contraceptive coverage. Indeed, Hobby Lobby turned on the assumption that “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”
Greg has a fair point, but I think it conflates the fact that a least-restrictive means exists, and whether the agency in question has the authority to issue it. We state this point deliberately:
Congress could certainly legislate an accommodation in this area, but this same action becomes ultra vires if taken by an agency lacking statutory authority to make such profound decisions
But wait, Greg replies, didn’t the Court offer its imprimatur on the accommodation? How can you now claim it is ultra vires?
This issue wasn’t presented to the Court, because it didn’t have to be. The only question was whether a least-restrictive means could be used. The answer is yes. The Court didn’t have to delve into this issue. As Justice Alito noted “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.”
In any event, it is for this reason that Cato requested that the Court consider this additional question. It is preserved in the case (the Little Sisters raised APA claims in their initial complaint), and would warrant further briefing.
In Monday’s Los Angeles Times, columnist Michael Hiltzik wrote a post, criticizing Judge Leon’s decision in the March for Life case. The original version of the story (courtesy of Archive.org) simply noted that Judge Leon found that the mandate was a “violation of the 5th Amendment’s guarantee of equal protection and therefore ‘unconstitutional.'”
This is an accurate assessment of Leon’s opinion.
At some point on Tuesday, Hiltzik modified the online version without any note. The new version (I couldn’t find a cached version) read:
Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)
Hiltzik took a fair characterization of the opinion and turned it into a cheap shot. As I noted yesterday, although the 5th Amendment does not have an Equal Protection Clause, the Court in Bolling v. Sharpe read it as embracing an equal protection component, or as Hiltzik put it in his initial column a “guarantee.” In any event, I found over 600 federal judges who used the phrase “equal protection clause of the Fifth Amendment.” It isn’t precisely correct, but enough judges use it that I’m not troubled. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits.
Hiltzik and I went back and forth over twitter. At some point yesterday, again without notation, the LA Times modified the article again:
Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here. The Equal Protection Clause is found in the Fourteenth Amendment, not the Fifth; it’s applied to the federal government by the Fifth, but via that amendment’s Due Process Clause. Shouldn’t a federal judge know this?)
Hiltzik clarifies his remark, but doubles down on the cheap shot. He had it right in the first instance. He was forced to acknowledge that the 5th Amendment embraces the Equal Protection guarantees, but still had to fault the judge for not knowing this–which he certainly did.
The initial characterization was fair. The second characterization was unfair. After it was pointed out that it wasn’t accurate, the third was less unfair, but still a cheap shot.
Earlier this week I blogged about Judge Leon’s opinion D.D.C. finding that the contraceptive mandate could not be applied to March for Life, a non-religious pro-life group, because it violates Equal Protection. In one of the more uninformed critiques of the opinion, Michael Hiltzik of the Los Angeles Times makes a mistake that shows a dearth of basic constitutional law knowledge:
Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)
If Hiltzik had read the Supreme Court’s 1954 decision in Bolling v. Sharpe–where the Court found the District of Columbia’s (federal) segregated school system was unconstitutional– or at a minimum Judge Leon’s opinion, he would know what all first-year law students learn–the Supreme Court has found an equal protection component inherent in the 5th Amendment’s Due Process Clause. (Whether this is consistent with original meaning is a far different question). This was how Justice Kennedy in Windsor found that DOMA was inconsistent with equal protection–it was a federal law, so he had to look to the 5th Amendment, not the 14th. Before calling a federal judge sloppy, a Pulitzer-Prize winning columnist should get his facts straight.
H/T Robert Dittmer
Update: Hiltzik tweets back that there is indeed no “equal protection clause of the Fifth Amendment.”
Bolling, which you cite: “The Fifth Amendment…does not contain an equal protection clause.” Bolling cites the 14th https://t.co/b3d9G5KwXC
— Michael Hiltzik (@hiltzikm) September 2, 2015
He is right. Bolling stated this clearly:
The Fifth Amendment, which is applicable in the District of Columbia, does not contain and equal protection clause, as does the Fourteenth Amendment, which applies only to the states.
But it is a common enough usage that I’m not troubled. I did a WestLaw search of the AllFeds database for “equal protection clause of the Fifth Amendment.” It pulled up 600 judges who used that exact locution. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits. Here is a sampling after the jump.
Update 2: Further, it is often colloquially said that a state police officer’s search violated the 4th Amendment. This isn’t the case. In fact, the state police officer violate the 4th Amendment, incorporated into the 14th Amendment’s due process clause. Consider how Justice Alito framed the issue in United States v. Windsor:
The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.United States v. Windsor, 133 S. Ct. 2675, 2706, 186 L. Ed. 2d 808 (2013)
In Kyllo v. United States (2001), Justice Scalia introduced a test to determine whether the use of a thermal imaging camera, a novel technology that could not be known at the time of the founding, constitutes a search for purposes of the Fourth Amendment.
“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v.United States, 267 U.S. 132, 149 (1925).
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.
In 2001 when this case was decided, the thermal camera was not in common use. However, this has changed. I blogged in 2013 that DARPA was working on shrinking thermal cameras to a handheld device.
Today, the Wall Street Journal reports that you can add a thermal camera to your iPhone or Android with a $250 accessory.
Heat-vision cameras have been used widely in many industries for decades: Soldiers find targets through heat-vision rifle sights, police mount them on helicopters to search for people on the ground and contractors use the sensors to look for cold air seeping into homes. Now you can buy a simple smartphone attachment to reveal the widely varying temperatures of the people and things around you.
The author recommends the Flir One:
The other big difference, one that ultimately makes Flir the better choice for most people, is that the Flir One actually has two cameras on board, a low-resolution traditional one in addition to the thermal. The real-time image on your phone is a composite of the two camera feeds, with high-contrast “edges” from the full-color camera providing much-needed definition to all of the thermal blobs. This is most helpful when you go back to look at your images later. In many cases, you’d otherwise have no clue what you’re looking at. …
But Flir currently has the edge in software. When browsing its in-app gallery of still photos, you can swipe between the full-color image and the thermal one. Seek gives you a live side-by-side view, using the built-in iPhone camera, but the images don’t line up well, and the tools Seek does offer to make use of this don’t work very well. Besides, the full-color images aren’t saved with the thermals.
So, Justice Scalia, is this is “general public use?” Maybe we can tell by how many downloads it gets in the App Store?
We’ve come a long way in the last century, as this German postcard from 1900 illustrates the X-Ray police force!
H/T Adam A.