The Cato Institute and Independent Women’s Forum have submitted an amicus brief in the Zubik & Little Sisters of the Poor v. Burwell. (Yes, I know the case is officially known as Zubik, but no one knows who he is, so I’ll stick with the Sisters). I was a co-author on the brief, along with Ilya Shapiro, Erin Morrow Hawley, and Josh Hawley.

The goal of our brief was to provide an alternate ground on which the Court can rule, separate and apart from RFRA. We aren’t concerned with whether there is a “substantial burden,” or if a “compelling governmental interest” exists, or if the accommodation is “the least restrictive alternative.” Rather, we view the case through the lens of administrative law, to question whether HHS has the authority to promulgate the accommodation in the discriminatory manner in which they did, whether this is the sort of “major question” that should be dumped at Chevron Step 1, and whether the accommodation should receive deference at Step 2 in light of King v. Burwell.

We offer these three additional questions for the Court to consider:

 1. Does the ACA delegate to the Departments of HHS, Treasury, and Labor the authority to discriminate among religious nonprofits based on the unsupported and unsound conclusion that some religious employers “are more likely than other employers to employ people who are of the same faith”?

2. Whether, to avoid religious-entanglement concerns, the ACA should be read at Chevron Step One, Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), not to delegate the authority to the Departments to classify religious organizations based on bureaucratically guesstimated religiosity?

3. Whether the Departments, which lack “expertise” to answer this “major question” of social, “economic and political significance,” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citations omitted), are entitled to judicial deference at Chevron Step Two?

We answer each question in the negative.

First, the preventive-care mandate does not authorize unelected administrators to pick and choose which religious nonprofits must violate their faiths’ teachings and which not. The Departments justified the religious-employer exemption on the grounds that “houses of worship and their integrated auxiliaries . . . are more likely than other employers to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39,887 (emphasis added). Other religious groups, like the Petitioners, received the accommodation because their employees “are less likely than individuals in plans of religious employers to share their employer’s . . . faith and objection to contraceptive coverage on religious grounds.” Id. (emphasis added). This Court has made clear that such profound questions of religious teaching are not the sort of issues Congress cryptically delegates to federal agencies. See Gonzales, 546 U.S. at 266–67. Absent express delegation by Congress, the Departments simply have no power to force certain religious nonprofits to violate religious teaching, all the while exempting others. Any claim to the contrary is “not sustainable.” Id.

Second, the Court should read the ACA in the only way it can be read—as delegating no authority to the Departments to classify religious organizations based on bureaucratically guesstimated religiosity. Doing so would not only be consistent with congressional design, but would avoid potentially serious constitutional questions. See Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172–73 (2001) (“SWANCC”) (“As an agency, it may not construe an ambiguous statute so as to raise serious constitutional doubts.”). Congress in no way, shape, or form delegated to HHS the authority to regulate religion—much less to make untenable distinctions among religious groups. Nowhere in the 900+ page ACA, or anywhere in its legislative history, is there any reference to any agency determining whether a religious ministry and its employees are sufficiently religious to merit protection—much less a congressional delegation involving the “specific provision” and “particular question” at issue here. City of Arlington v. FCC, 133 S. Ct. 1863, 1881 (2013) (Roberts, C. J., dissenting) (citation omitted). The government cannot point to any “legislative delegation to [the Departments] on a particular question [involving religiosity].” Id. (quoting Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984) (emphasis in original).

Congress in no way, shape, or form delegated to HHS the authority to regulate religion—much less to make untenable distinctions among religious groups. Nowhere in the 900+ page ACA, or anywhere in its legislative history, is there any reference to any agency determining whether a religious ministry and its employees are sufficiently religious to merit protection—much less a congressional delegation involving the “specific provision” and “particular question” at issue here. City of Arlington v. FCC, 133 S. Ct. 1863, 1881 (2013) (Roberts, C. J., dissenting) (citation omitted). The government cannot point to any “legislative delegation to [the Departments] on a particular question [involving religiosity].” Id. (quoting Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984) (emphasis in original).

Third, even if the Departments have the authority to pick and choose among religious nonprofits (they do not), they would not receive deference for the so- called “accommodation.” Chevron deference “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” King v. Burwell, 135 S. Ct. at 2488 (quoting Brown & Williamson, 529 U.S. at 159). “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Id. There is no such delegation in this case. The Departments’ determination that some religious nonprofits are insufficiently religious to merit an exemption, 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 here, the accommodation cannot possibly be a “permissible construction of the statute.” Chevron, 467 U.S. at 843. “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).

Our brief offers three steps at which the Court can rule in favor of petitioners, without engaging in the delicate balancing required by RFRA. Once again, the greatest weakness of the ACA comes not from Congress, but from the manner in which the executive branch has implemented it.